Lieu v. Federal Election Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REPRESENTATIVE TED LIEU, et al.,

Plaintiffs, Civ. No. 16-2201 (EGS)

v.

FEDERAL ELECTION COMMISSION,

Defendant.

MEMORANDUM OPINION

This case involves the constitutionality of the Federal

Election Campaign Act’s (“FECA”) limits on contributions to

political action committees that make only independent

expenditures. The Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has held that contributions to such

independent expenditure-only political action committees “cannot

corrupt or create the appearance of corruption” and therefore

limits on contributions to these groups are unconstitutional.

SpeechNow.org v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010)(en

banc). The upshot of this holding is that certain political

action committees, commonly known as “Super PACs” can “receive

unlimited amounts of money from both individuals and

corporations” and “engage in unlimited electioneering

communications, so long as their activities are not made ‘in

cooperation, consultation, or concert, with, or at the request

or suggestion of’ a candidate, his or her authorized political
committee, or a national, State, or local committee of a

political party.” Stop This Insanity, Inc. Employee Leadership

Fund v. FEC, 902 F. Supp. 2d 23, 37 (D.D.C. 2012)(citation

omitted). It is undisputed that this is the law of the Circuit.

Notwithstanding the D.C. Circuit’s ruling in SpeechNow,

Plaintiffs Representative Ted Lieu; Representative Walter Jones;

Senator Jeff Merkley, State Senator (ret.); John Howe; Zephyr

Teachout; and Michael Wager (collectively, “Plaintiffs”) brought

an administrative complaint against several Super PACs alleging

violations of FECA when the Super PACs knowingly accepted

contributions in excess of monetary limits set by FECA. The

Federal Election Commission (“FEC” or “Commission”) disagreed

explaining that under SpeechNow the Super PACs actions were

lawful. Accordingly, the FEC dismissed the administrative

complaint.

Plaintiffs bring this action alleging the FEC acted

“contrary to law” when it dismissed the administrative complaint

against the Super PACs because the FEC relied on SpeechNow--an

allegedly unlawful judicial ruling. Pending before the Court is

FEC’s motion to dismiss plaintiffs’ complaint for failure to

state a claim. Plaintiffs have the daunting task of persuading

this Court to rule inconsistently with the D.C. Circuit’s en

banc opinion in SpeechNow. This Court cannot do so, therefore

defendant’s motion to dismiss is GRANTED.

2
I. Background

Because the claims in this case involve several provisions

of FECA, and the D.C. Circuit’s interpretation of those

provisions, the Court begins with an explanation of the statute

and relevant case law.

A. FECA and SpeechNow

FECA was enacted to “limit spending in federal election

campaigns and to eliminate the actual or perceived pernicious

influence over candidates for elective office that wealthy

individuals or corporations could achieve by financing the

‘political warchests’ of those candidates.” Orloski v. FEC, 795

F.2d 156, 163 (D.C. Cir. 1986)(citing Buckley v. Valeo, 424 U.S.

1, 25–26 (1976)). To that end, there are several provisions in

FECA that limit the amount of money a person can contribute to a

federal campaign. These limits often depend on who or where the

contribution is coming from, and the amount of the contribution.

Relevant to this case are the limits on contributions made

to political action committees. 1 FECA defines a “political

committee” as “any committee, club, association, or other group

of persons” that receives “contributions” or makes

1 The term “political action committee or ‘PAC’ . . . normally
refers to organizations that corporations or trade unions might
establish for the purpose of making contributions or
expenditures that [FECA] would otherwise prohibit.” FEC v.
Atkins, 524 U.S. 11, 15 (1998)(citing 2 U.S.C. §§ 431(4)(B),
411b).
3
“expenditures” “for the purpose of influencing any election for

Federal Office” “aggregating in excess of $1,000 during a

calendar year.” 52 U.S.C. § 30101(4)(A), (8)(A)(i),(9)(A)(i).

This definition has been further tailored by the Supreme Court

to “only encompass organizations that are under the control of a

candidate or the major purpose of which is the nomination or

election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79

(1976). Political action committees fall within the category of

political committees as defined by the Act.

FECA sets several limitations on the contributions

political committees may receive depending on the type of entity

that receives the contribution. A political committee that is

not authorized by a candidate or established by a national or

state political party may not knowingly accept any contribution

in excess of $5,000 per year from an individual. 52 U.S.C.

§ 30116(f). And, of course, an individual shall not contribute

more than $5,000 per year to this type of political committee.

Id. § 30116(a)(1)(C).

The $5,000 limit on contributions to political committees

does not apply, however, to political committees that solely

engage in independent expenditures. See SpeechNow, 599 F.3d at

694–95. Independent expenditures are defined by FECA as

expenditures “that expressly advocate[] the election or

defeat of a clearly identified candidate” and are “not made in

4
concert or cooperation with or at the request or suggestion of

such candidate, the candidate’s authorized political committee,

or their agents, or a political party committee or its agents.”

52 U.S.C. § 30101(17).

The inability to put limitations on contributions to

independent expenditure-only political committees has led to

“the genesis of so-called ‘Super PACs.’” Stop this Insanity, 902

F. Supp. 2d at 37. Super PACS were born from the union of the

rulings in two First Amendment campaign finance cases. In the

first case, Citizens United v. FEC, the Supreme Court

“conclude[d] that independent expenditures, including those made

by corporations, do not give rise to corruption or the

appearance of corruption.” 558 U.S. 310, 357 (2010). Therefore,

the Court held, the government did not have a sufficient anti-

corruption interest in restricting corporations from engaging in

political speech funded from the corporation’s general treasury

if that speech was in the form of an independent expenditure.

Id. at 358.

In the second case, SpeechNow, the D.C. Circuit held that

if under Citizens United there was no anti-corruption interest

in limiting independent expenditures then there could not be an

anti-corruption interest in regulating contributions to

independent expenditure-only political action committees. 599

F.3d at 694–95. The D.C. Circuit acknowledged that the only

5
interest recognized by the Supreme Court as sufficiently

important to outweigh First Amendment interests implicated by

contributions for political speech was the interest of

“preventing corruption or the appearance of corruption.”

SpeechNow, 599 F.3d at 692 (citations omitted). Applying the

then-new precedent of Citizens United, the D.C. Circuit reasoned

that if the Supreme Court ruled that limits on independent

expenditures were unconstitutional, it necessarily follows that

limits on contributions to political committees that engaged

solely in independent expenditures are also unconstitutional.

Id. This is because, like the independent expenditures in

Citizens United, “contributions to groups that make only

independent expenditures also cannot corrupt or create the

appearance of corruption.” Id. at 694. In other words, the

government “has no anti-corruption interest in limiting

contributions to an independent expenditure group” and

therefore, the D.C. Circuit held, any limits on such

contributions are unconstitutional. Id. at 695.

Enter Super PACs. Because these political action committees

make solely independent expenditures, they are “permitted to

receive unlimited amounts of money from both individuals and

corporations.” Stop This Insanity, 902 F. Supp. 2d at 37. This

allows for an “unlimited [amount of] money to flow into the

electoral process for express advocacy” for particular

6
candidates so long as the expenditures are not coordinated with

that candidate. Id. at 38.

In light of Citizens United and SpeechNow, the FEC issued

an advisory opinion explaining the SpeechNow ruling and its

effects on the regulation of political action committees. FEC

Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269 (July

22, 2010). The advisory opinion explained that the FEC’s

understanding was that it “necessarily follows” from Citizens

United and SpeechNow “that there is no basis to limit the amount

of contributions to” an independent expenditure-only political

committee “from individuals, political committees, corporations

and labor organizations,” which are covered by 52 U.S.C. §

30116(a)(1)(C). Id. at *2. The advisory opinion also triggered

FECA’s safe harbor for “any person involved in any specific

transaction or activity which is indistinguishable in all its

material aspects” from the activity described in the opinion. 52

U.S.C. § 30108(c)(1)(B). Additionally, anyone who relies on a

finding in an advisory opinion and does so in good faith “shall

not, as a result of any such act, be subject to any sanction

provided” by FECA. Id. § 30108(c)(2). Since issuing the advisory

opinion, the Commission has not enforced the limits in 52 U.S.C.

§ 30116(a)(1)(C) when contributions are given to groups that

make only independent expenditures. Def.’s Mot. to Dismiss, ECF

7
No. 39 at 11. 2

FECA allows any person to file an administrative complaint

with the FEC alleging a violation of the statute. 52 U.S.C.

§ 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing the

complaint, and relevant submissions made by the administrative

respondents, the FEC must determine whether there is “reason to

believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2).

If the Commission dismisses the complaint, FECA allows “[a]ny

party aggrieved” by the dismissal to file suit to obtain

judicial review. 3 52 U.S.C. § 30109(a)(8)(A). If the reviewing

court concludes that the Commission’s dismissal is “contrary to

law,” the court can “direct the Commission to conform with

[that] declaration within 30 days.” Id. § 30109(a)(8)(C).

B. Procedural History

Plaintiffs filed an administrative complaint against ten

political action committees, all Super PACs, alleging that they

knowingly accepted contributions in excess of the $5,000 per

person per year limit set by FECA. See Am. Compl. ECF No. 36 ¶

79 (citing 52 U.S.C. § 30116(a)(1)(C) and (f); 11 C.F.R. §§

110.1(d) and (n)). The complaint also cited over 39 specific

2 When citing electronic filings throughout this opinion, the
Court cites to the ECF header page number, not the page number
of the filed document.
3 All such lawsuits must be filed in this district. Id.

(providing that aggrieved parties “may file a petition with the
United States District Court for the District of Columbia”).
8
contributions to the Super PACs from over two-dozen contributors

that were alleged to violate FECA’s contribution limits. 4 Joint

Appendix (J.A.), ECF No. 45 at 23–30; Id. ¶¶ 41–78.

In their administrative complaint, Plaintiffs recognized

that the FEC in its Advisory Opinion had declared its intent to

follow SpeechNow’s holding that contribution limits as applied

to contributions to independent expenditure-only political

committees are unconstitutional. J.A. at 9. Plaintiffs, however,

reminded the FEC that they were not bound to the SpeechNow

decision and could “still enforce FECA’s contribution limits in

cases brought by or against other parties outside the D.C.

Circuit.” J.A. at 10. Another way around SpeechNow, argued

plaintiffs, was for the FEC to refuse to acquiesce to the

SpeechNow ruling even in the D.C. Circuit “as long as the agency

is ‘embarked on a rational litigation program designed to secure

a reasonably prompt national resolution of the question in

dispute.’” Id. (citing Samuel Estreicher & Richard L. Revesz,

The Uneasy Case Against Intracircuit Nonacquiescence, 99 Yale

L.J. 831, 832 (1990)). Therefore, plaintiffs invited the FEC “to

reconsider, in light of later experience, its decision to

acquiesce to SpeechNow.” Id.

4 For example, the Freedom Partners Action Fund, Inc. was alleged
to have received contributions from four individuals, the
Charles G. Koch 1997 trust, and the Mountaire Corporation of
Little Rock, of over $13,000,000,000 total.
9
 The FEC declined the invitation. The Commission voted

unanimously to find no reason to believe that the administrative

respondents, (i.e., the Super PACs), had violated FECA. J.A. at

213–14. The Commission acknowledged plaintiffs’ factual

allegations and plaintiffs’ arguments that SpeechNow was wrongly

decided, but found that “the D.C. Circuit’s decision in

SpeechNow and the Commission’s [advisory opinion] plainly permit

the contributions described in the [c]omplaint, and [plaintiffs]

do not suggest otherwise.” Id. at 208. In light of plaintiffs’

concession that “SpeechNow and [the advisory opinion] permit the

conduct described in the [c]omplaint” the Commission ruled that

it would be inconsistent to find that there was a “reason to

believe that respondents violated the law.” Id. at 210.

The Commission also noted that Super PACs were entitled to

rely on the advisory opinion in which the Commission adopted the

holding in SpeechNow. J.A. at 208. The Commission explained that

individuals may rely on an advisory opinion as long as the

person is “involved in the specific transaction or activity with

respect to which such advisory opinion is rendered” or if the

person is involved in a specific transaction or activity “which

is indistinguishable in all its material aspects from the

transaction or activity with respect to which such advisory

opinion is rendered.” Id. (citing 52 U.S.C. §

30108(c)(1)(A),(B)). The Commission further noted that FECA and

10
the Commission’s regulation prohibit the Commission from

sanctioning any person who acts in good-faith reliance on an

advisory opinion. Id. (citing 52 U.S.C. § 30108(c)(2)).

The Commission also explicitly addressed its decision to

acquiesce to SpeechNow. The Commission began by explaining that

the doctrine of nonacquiesence “refers to an agency’s conscious

decision to disregard the law of one or more circuits to

generate a circuit split that will result in judicial finality

through Supreme Court review.” Id. at 210 (citation omitted).

The Commission reasoned that acquiescence therefore “assumes

that the law forming the basis for the obligation to acquiesce

remains in flux.” Id. (citing Johnson v. U.S.R.R. Ret. Bd., 969

F.2d 1082, 1092 (D.C. Cir. 1992)). The Commission explained that

because “seven federal courts of appeals” have addressed the

constitutionality of imposing limits on contributions to Super

PACs and have all ruled that such limits are unconstitutional,

“there is simply no basis to conclude that the law remains

unsettled in a way that would begin to justify Commission

nonacquiescence . . . even if the Commission had not already

adopted the holding of SpeechNow in [the advisory opinion].” Id.

at 210–11. Accordingly, the Commission dismissed the complaint.

Plaintiffs sought review of the Commission’s decision by

filing this law suit. In their amended complaint, plaintiffs

allege that because the FEC’s dismissal of the administrative

11
complaint “rested on legally erroneous conclusions about the

constitutionality of [FECA]” the dismissal was “’contrary to

law’ under 52 U.S.C. § 3019(a)(8)(C).” See Am. Compl., ECF No.

36 ¶¶ 85–88. 5 Defendant’s moved to dismiss the complaint for

failure to state a claim. See Def.’s Mot. to Dismiss, ECF No.

39. Plaintiffs filed their opposition to the motion to dismiss

and defendants have filed a reply. This case is now ripe for

adjudication.

II. Legal Standard

The FEC has moved to dismiss plaintiffs’ amended complaint

for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). However, because this case requires the

Court to review an agency’s final action, the traditional Rule

12(b)(6) standard of review does not apply. Marshall Cnty.

Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.

1993). Rather, when agency action is challenged, “[t]he entire

case on review is a question of law, and only a question of law.

And because a court can fully resolve any purely legal question

on a motion to dismiss, there is no inherent barrier to reaching

5 Plaintiffs also alleged a violation of the Administrative
Procedure Act, 5 U.S.C. § 706(2), in Count II of their Amended
Complaint, but have since dropped that claim. See Pls.’ Opp’n.,
ECF No. 42 at 13 n.1 (“Plaintiffs do not oppose dismissal of
Count II, alleging that the FEC’S dismissal of plaintiffs’
complaint violated the Administrative Procedure Act.”).
Accordingly, Count II of the complaint is DISMISSED.
12
the merits at the 12(b)(6) stage.” Id. Accordingly, in reviewing

agency action, “the district judge sits as an appellate

tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083

(D.C. Cir. 2001).

A party challenging an FEC dismissal decision under FECA’s

judicial review provision, 52 U.S.C. § 30109(a)(8)(A), is

entitled to relief if the dismissal decision is “contrary to

law.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “The

FEC's decision is ‘contrary to law’ if (1) the FEC dismissed the

complaint as a result of an impermissible interpretation of the

Act, . . . or (2) if the FEC's dismissal of the complaint, under

a permissible interpretation of the statute, was arbitrary or

capricious, or an abuse of discretion.” Id. (citations omitted).

III. Analysis

The Court begins by addressing the threshold issue of the

appropriate standard of review for the FEC’s decision to dismiss

a plaintiffs’ administrative complaint when that dismissal is

based on an interpretation of judicial precedent. The Court then

turns to the merits and discusses whether the FEC’s decision was

“contrary to law” under FECA.

A. Proper Standard of Review under FECA

The parties agree that the standard of review for a

Commission’s dismissal of an administrative complaint is whether

the dismissal is “contrary to law” under FECA. 52 U.S.C.

13
§ 30109(a)(8)(C); see Def.’s Mot. to Dismiss, ECF No. 39 at 17;

Pls.’ Opp’n, ECF No. 42 at 14. The parties similarly agree that

courts need not give binding deference to an administrative

agency’s interpretation of judicial precedent or the

Constitution. Def.’s Mot. to Dismiss, ECF No. 39 at 17; Pls.’

Opp’n, ECF No. 42 at 14. Where the parties part ways, however,

is on the question of whether the “contrary to law” standard

under FECA requires the Court to give any deference to the

Commission’s enforcement decisions, even if the deference is not

conclusive.

Plaintiffs argue that review in this case should be de

novo. Pls.’ Opp’n., ECF No. 42 at 15. Plaintiffs acknowledge

that in the typical case in which the FEC is interpreting a

statute that it administers the Court is required to defer to

the agency’s interpretation. Id. at 14 (citing Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984)).

Plaintiffs further acknowledge that a Court must defer to an

agency’s dismissal which rests on a factual determination as

long as that determination is supported by substantial evidence.

Id. (citing Hagelin v. FEC, 411 F.3d 237, 242-43 (D.C. Cir.

2005)). Plaintiffs argue, however, that neither circumstance

applies to this case because the FEC’s dismissal was based on

its interpretation of SpeechNow, and courts need not defer to an

agency’s interpretation of judicial precedent. Id.

14
 The FEC argues that the Court should defer to the dismissal

decision. Def.’s Mot. to Dismiss, ECF No. 39 at 18. The FEC

recognizes that “courts are not obligated to give binding

deference to an agency’s interpretation of judicial precedent or

the Constitution.” Id. at 18 (citing Univ. of Great Falls v.

NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002)). The FEC argues,

however, that in the context of a decision to not enforce FECA,

an agency engages in a complicated balance of factors

particularly in the agency’s expertise including whether the

agency is likely to succeed if it acts and whether the

enforcement action best fits the agency’s overall policy goals.

Id. (citing Heckler v. Cheney, 470 U.S. 821, 831 (1985)).

Defendants argue that because there are discretionary factors

involved in a decision about whether to bring an enforcement

action, the Court should defer to the agency’s decision

notwithstanding the fact that the decision turned on the

interpretation of judicial precedent. Id.

The Court is persuaded that plaintiffs have the better

argument. This is not the typical case of administrative review:

the FEC’s decision to dismiss the complaint was based

exclusively on its interpretation of the D.C. Circuit’s opinion

in SpeechNow. The precedent in this Circuit is clear that

“courts need not, and should not, defer to agency

interpretations of opinions written by courts.” Citizens for

15
Responsible Ethics in Washington v. FEC, 209 F. Supp. 3d 77, 87

(D.D.C. 2016)(collecting cases). This principle is “especially

true where, as here, . . . the . . . precedent is based on

constitutional concerns, which is an area of presumed judicial

competence.’” Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996),

vacated on other grounds, 524 U.S. 11 (1998).

The FEC invokes Heckler v. Cheney, but that case is

inapposite. 470 U.S. 821, 831 (1985). Although Heckler does

stand for the proposition that there is a presumption that

agency decisions not to enforce are unreviewable, FECA’s express

provision for the judicial review of FEC dismissal decisions

rebuts that presumption. See FEC v. Akins, 524 U.S. 11, 26

(1998) (“In Heckler, this Court noted that agency enforcement

decisions have traditionally been committed to agency

discretion, and concluded that Congress did not intend to alter

that tradition in enacting the APA . . . We deal here with a

statute [FECA] that explicitly indicates the

contrary.”)(internal quotation marks omitted). Moreover, here,

the dismissal decision was not rooted in a judgment call such as

exercising prosecutorial discretion or policy-based

justifications, but rather an interpretation of judicial

precedent. In other words, the decision was not based on

discretionary factors that would require the Court to defer to

the judgment and expertise of the agency. Accordingly, the Court

16
will not afford deference to the FEC's interpretation of

judicial precedent defining the protections of the First

Amendment as it relates to the issues in this case.

B. Review of the FEC’s Dismissal Decision

Plaintiffs argue that the FEC acted contrary to law in its

interpretation of SpeechNow because its decision to dismiss the

administrative complaint rested on a judicial ruling that was

contrary to law. Pls.’ Opp’n., ECF No. 42 at 17. Plaintiffs

concede that the D.C. Circuit’s ruling in SpeechNow “voided the

long-established statutory limits for contributions to any

political committee that restricts its spending to independent

expenditures.” Am. Compl., ECF No. 36 ¶ 2 (emphasis in

original). However, plaintiffs argue that SpeechNow does not

stop the FEC from declaring the Super PACs’ actions as unlawful.

Pls.’ Opp’n., ECF No. 42 at 19.

In SpeechNow, the D.C. Circuit sitting en banc determined

that FECA limits on contributions could not be constitutionally

applied to independent expenditure-only political action

committees. 599 F.3d at 694–96. The D.C. Circuit began by

recognizing that “although contribution limits do encroach upon

First Amendment interests, they do not encroach upon First

Amendment interests to as great a degree as expenditure limits.”

Id. at 692. The Court explained that expenditures and

contributions are treated differently because, “in ‘contrast

17
with a limitation upon expenditures for political expression, a

limitation upon the amount that any one person or group may

contribute to a candidate or political committee entails only a

marginal restriction upon the contributor's ability to engage in

free communication.’” Id. (quoting Buckley, 424 U.S. at 20–21).

The D.C. Circuit held that although the standard for

restrictions on contributions is less stringent than the

standard for expenditures, the Act’s contribution limit was

unconstitutional under either standard because the government

has no valid “interest in limiting contributions to independent

expenditure-only organizations.” Id. at 696. The Court explained

that the only interest recognized by the Supreme Court as

sufficiently important to outweigh the First Amendment interests

implicated by contributions for political speech is the interest

in “preventing corruption or the appearance of corruption.” Id.

(citations omitted). However, in light of the Supreme Court’s

ruling in Citizens United that independent expenditures could

not corrupt or create the appearance of corruption, the D.C.

Circuit held that it “must conclude” that “the government has no

anti-corruption interest in limiting contributions to an

independent expenditure group.” Id. at 695. Since the government

had zero interest in limiting contributions to groups that make

only independent expenditures, the D.C. Circuit reasoned that

the implicated First Amendment interests outweighed the

18
government’s non-existent interests. Id. As the D.C. Circuit put

it, “something . . . outweighs nothing every time.” Id.

(citation omitted).

Plaintiffs point out several alleged flaws in the D.C.

Circuit’s decision. Plaintiffs argue that SpeechNow: (1) failed

to appreciate the distinction between contributions and

expenditures; (2) rested on a logical fallacy that if

expenditures cannot corrupt then contributions cannot corrupt

either; (3) failed to appreciate a regulatory interest in

limiting contributions; (4) misinterpreted the holding in

Citizens United; and (5) developments since SpeechNow require

its reconsideration. Pls.’ Opp’n, ECF No. 42 at 23–38; see also

id. at 26 (“The bottom line of the SpeechNow opinion--that

contributions to super PACs cannot corrupt--is plainly wrong.”).

Plaintiffs’ acknowledge that the D.C. Circuit’s

interpretation of Citizens United in SpeechNow binds this Court

unless SpeechNow has been overruled by either the D.C. Circuit

sitting en banc, or the Supreme Court. Pls.’ Opp’n, ECF No. 42

at 23. There is no D.C. Circuit case that purports to overrule

SpeechNow. The only Supreme Court case the Plaintiffs cite that

postdates SpeechNow and therefore could have possibly overruled

it is McCutcheon v. FEC, 572 U.S. 185 (2014)(plurality opinion).

In McCutcheon, a Supreme Court plurality held that an aggregate

limit on the amount an individual can contribute to a candidate

19
or national party was unconstitutional. 6 McCutcheon, 572 U.S. at

194. The Court held that the aggregate limit on contributions

was more than a “modest restraint upon protected political

activity” because the limit functionally prohibited an

individual from fully contributing to primary and general

elections campaigns of ten or more candidates. 7 Id. at 204. In

balancing the First Amendment interest with the government’s

burden of showing that the aggregate limits further the

permissible objective of preventing quid pro quo corruption, the

Court stated “there is not the same risk of quid pro quo

corruption or its appearance when money flows through

independent actors to a candidate, as when a donor contributes

to a candidate directly.” Id. at 210. The Court also noted

“[t]he absence of prearrangement and coordination of an

expenditure with the candidate or his agent . . . undermines the

value of the expenditure to the candidate[,] but probably not by

95 percent.” Id. at 214.

Plaintiffs point to the McCutcheon decision and argue that

the Court recognized that “the lack of coordination may make an

6 The base limit, which restricted how much money a donor may
contribute to any particular candidate or committee, was not
challenged.
7 The base limits were such that an individual would reach the

aggregate limit after contributing the max base amount, $5,200
each, to nine candidates. Therefore, the aggregate limit
functioned as an outright ban on further contributions to any
more candidates. McCutcheon, 572 U.S. at 204.
20
expenditure worth less but not worthless.” Pls.’ Opp’n., ECF No.

42 at 33. And therefore, plaintiffs argue, independent

expenditures cannot be wholly non-corrupting since they retain

some value. Id. McCutcheon, however was not about independent

expenditures but rather contributions directed to a particular

candidate or party committee. Id. at 193–94. In any event,

McCutcheon did not purport to overturn SpeechNow or Citizens

United.

The Court recognizes that there is some tension between

SpeechNow and other Supreme Court decisions. But that tension

flows from inconsistencies between Citizens United and prior

Supreme Court campaign finance decisions. See McCutcheon, 572

U.S. at 240–45 (Breyer, J., dissenting)(explaining statements in

Citizens United about proper contours of corruption “conflict

not just with the language of [prior precedent] but with . . .

the very holding[s]” of prior Supreme Court cases).

Nevertheless, the D.C. Circuit has spoken on the issue--limits

on contributions to Super PACs are unconstitutional--and the

D.C. Circuit’s reasoning is binding on this Court. Plaintiffs

point to no Supreme Court cases which show that SpeechNow has

been overruled.

Plaintiff’s allegations about the violations of the Super

PACs fall squarely within the holding of SpeechNow. It cannot be

said that the FEC’s determination, which was based on SpeechNow,

21
was contrary to law. To do so would be tantamount to a

declaration that binding precedent of the D.C. Circuit was

unlawful. And that is not something this Court is prepared to

say. 8

IV. Conclusion

This case centers on the balance of two competing

interests. On one hand, “[t]here is no right more basic in our

democracy than the right to participate in electing our

political leaders . . . [which includes] contribut[ing] to a

candidate’s campaign.” McCutcheon, 572 U.S. at 191. On the other

hand, “[t]o say that Congress is without power to pass

appropriate legislation to safeguard an election from the

improper use of money to influence the result is to deny to the

nation in a vital particular the power of self protection.”

McConnell v. FEC, 540 U.S. 93, 223–24 (2003)(alterations and

citation omitted). In SpeechNow, the D.C. Circuit struck that

balance and ruled that any contribution limits to independent

expenditure-only groups (i.e., Super PACs) were unconstitutional

because the government has absolutely no anti-corruption

interest in stopping contributions to such groups. 599 F.3d at

695. The FEC followed that opinion in deciding to dismiss the

8 Because the FEC correctly applied SpeechNow in dismissing the
administrative complaint, the Court need not decide whether the
Commission erroneously acquiesced to SpeechNow or whether the
FEC’S reliance on its advisory opinion was contrary to law.
22
administrative complaint against the Super PACs in this case.

Accordingly, the FEC did not act contrary to law, and

defendant’s motion to dismiss is GRANTED.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
February 28, 2019

23