LIBERTARIAN NATIONAL COMMITTEE, INC. v. FEDERAL ELECTION COMMISSION
MEMORANDUM OPINION re: Defendant's 48 MOTION to Alter Judgment. Signed by Judge Robert L. Wilkins on 6/17/2013. (tcb)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 11-cv-562 (RLW)
FEDERAL ELECTION COMMISSION,
The Federal Election Commission (“FEC”) has moved pursuant to Federal Rule of Civil
Procedure 59(e) to alter or amend this Court’s Order certifying one question to the en banc
United States Court of Appeals for the District of Columbia Circuit. The FEC claims this Court
committed clear error, and advances three arguments. Finding that none of the arguments satisfy
the Rule 59(e) standard and that oral argument is unnecessary, for the reasons stated below the
FEC’s motion (Dkt. No. 48) is DENIED.
History of This Case
This case stems in part from the bequest of Raymond Groves Burrington, whose will left
a residuary bequest to the Libertarian National Committee, Inc. (“LNC”) in an amount
eventually determined to be $217,734.00. Libertarian Nat’l Comm., Inc. v. FEC, --- F. Supp. 2d
----, 2013 WL 1097792, at *1 (D.D.C. Mar. 18, 2013) (“LNC”). As explained in greater detail in
LNC, because the FEC has interpreted the relevant provisions of the Federal Election Campaign
Act (“FECA”), 2 U.S.C. §§ 431-57, to limit contributions from testamentary estates to national
political committees, “the LNC can only accept annual distributions from Burrington’s gift at the
maximum threshold set by 2 U.S.C. §§ 441a(a)(1) & 441a(c), rather than accepting the gift all at
once.” Id. Seeking to receive the Burrington gift all at once, the LNC moved this Court,
pursuant to 2 U.S.C. § 437h, to certify the following question to the en banc Court of Appeals:
“Does imposing annual contribution limits against testamentary bequests directed at, or accepted
or solicited by political party committees, violate First Amendment speech and associational
For the reasons discussed in LNC, this Court reframed the question and certified the
following one to the en banc Court of Appeals: “Does imposing annual contribution limits
against the bequest of Raymond Groves Burrington violate the First Amendment rights of the
Libertarian National Committee?” The FEC contends that certification of this question was clear
error for three reasons. First, it claims that applying the contribution limits to Burrington’s
bequest does not violate the First Amendment, and that this conclusion follows from the holding
in LNC that applying contribution limits does not violate the First Amendment with respect to
bequests generally. Second, it claims that the Court applied a test akin to strict scrutiny instead
of “closely drawn” scrutiny. And third, it claims that the ruling could lead to a proliferation of
litigation under 2 U.S.C. § 437h. After noting the standard of review in Rule 59(e) cases, the
Court will address these arguments in turn.
Standard for Altering or Amending a Judgment
A motion to alter or amend a judgment is brought pursuant to Federal Rule of Civil
Procedure 59(e). Motions to alter or amend under Rule 59(e) are disfavored, “and relief from
judgment is granted only when the moving party establishes extraordinary circumstances.”
Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing
Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)). “A Rule 59(e) motion is
discretionary and 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.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A Rule 59 motion is not a means
by which to “reargue facts and theories upon which a court has already ruled.” New York v.
United States, 880 F. Supp. 37, 38 (D.D.C. 1995).
The Court Properly Concluded That The Burrington Bequest Presented An
As-Applied Challenge That Merits Certification To The En Banc Court Of
The thrust of the FEC’s motion for reconsideration does not find support in the language
of 2 U.S.C. § 437h. The agency acknowledges that as-applied First Amendment challenges
seeking categorical exceptions to FECA’s contribution limits are proper under the statute, but the
FEC argues that the as-applied question certified by this Court is not proper because it is a First
Amendment challenge to an individual contribution. As always, the first place to look in
resolving a question of statutory interpretation is the language of the statute itself. Kellmer v.
Raines, 674 F.3d 848, 850 (D.C. Cir. 2012).
The key word of the statute at issue here, as clarified by Justice Marshall, is “all”:
“Section 437h expressly requires a district court to ‘immediately . . . certify all questions of the
constitutionality of this Act’ to the court of appeals.” Cal. Med. Ass’n v. FEC, 453 U.S. 182,
190 (1981) (quoting 2 U.S.C. § 437h) (emphasis in original). The statute does not proclaim that
certain categories of constitutional questions are appropriate for certification, while others are
Instead, the statute indicates that “all” non-frivolous questions regarding the
constitutionality of the statute “shall” be certified to the en banc Court of Appeals. See id. at
n.10 (“§ 437h indicates that it was intended to cover all serious constitutional challenges to the
Act.”) (emphasis added). Because this Court found that the LNC’s challenge regarding the
Burrington bequest is not frivolous, the “all-encompassing language,” id. at 190, used in the
statute supports certification of the question as formulated.
A simple hypothetical, aided by the Supreme Court’s ruling in Cal. Med. Ass’n,
strengthens the argument for this Court’s certification of the question to the en banc Court of
Appeals. Assume the LNC took the entire Burrington bequest years ago, and the FEC then
brought an enforcement action against the LNC under 2 U.S.C. § 437g. The LNC could have
argued in its defense that enforcement of FECA as applied to the Burrington bequest was
unconstitutional. Morever, Cal. Med. Ass’n expressly rejected the argument that certification of
an as-applied challenge to a contribution limit pursuant to 2 U.S.C § 437h was error because of a
pending enforcement action. 453 U.S. at 190-91. Indeed, the district court certified an asapplied challenge to a contribution limit in that case: “Does the $5,000 calendar year limit
established by 2 U.S.C. § 441a(a)(1)(C) on contributions to a political committee, when applied
to contributions of administrative support as specified in § 441b(b)(2)(C) by CMA, an
unincorporated association, to CALPAC, CMA’s political action committee, violate the First
and Fifth Amendments to the Constitution, when these provisions, and 2 U.S.C. §§ 431(e)(5)(F)
and 431(f)(4)(H), on their face and as interpreted by the Federal Election Commission, allow
unlimited contributions of such administrative support by corporations and labor organizations to
their respective political action committee?” Cal. Med. Ass’n v. FEC, 641 F.2d 619, 622 n.1 (9th
Cir. 1980) (emphasis added). 1 Thus, in our hypothetical, the holding of Cal. Med. Ass’n, leads to
The district court certified another as-applied challenge: “Does the $5,000 calendar year
limit established by 2 U.S.C. § 441a(a)(1)(C) on contributions to a political committee, when
applied to CALPAC’s receipt of contributions of administrative support as specified in §
441b(b)(2)(C) from CMA, an unincorporated association and CALPAC’s connected organization
as defined in 11 C.F.R. § 1001.5, violate the First and Fifth Amendments to the Constitution
when these provisions, and 2 U.S.C. §§ 431(e)(5)(F) and 431(f)(4)(H), on their face and as
interpreted by the Federal Election Commission, allow receipt of unlimited contributions of such
the conclusion that the LNC could defend the enforcement action and also seek certification of a
First Amendment challenge as applied to the Burrington bequest to the en banc Court of
The FEC’s attempt to distinguish Supreme Court cases regarding other individualized asapplied challenges is not persuasive. In Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410
(2006) (per curiam), the Supreme Court ruled 9-0 that an as-applied First Amendment challenge
regarding specific broadcast advertisements that Wisconsin Right to Life, Inc. wanted to run was
not foreclosed simply because the statute had previously survived a facial challenge. One year
later, the plaintiffs in Wisconsin Right to Life prevailed in their individualized as-applied
challenge. FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). Similarly, in Massachusetts
Citizens for Life v. FEC, 479 U.S. 238, 268 (1986) (“MCFL”), the Supreme Court found an asapplied exception regarding independent expenditures because it found no threat of the danger of
corruption. The FEC correctly notes that these cases involved spending limitations, and tries to
distinguish them for that reason, but the agency cites no precedent forbidding the application of
these and other cases to challenges involving contribution limits. Faced with broad statutory
language and Supreme Court precedent allowing individualized as-applied First Amendment
challenges to expenditure restrictions, this Court is not prepared to foreclose all individualized
as-applied challenges to contribution limits pursuant to 2 U.S.C. § 437h. That novel question
should be answered by the en banc Court of Appeals, rather than by this Court.
Not only did the FEC never previously argue that individualized as-applied challenges to
contribution limits are foreclosed as a matter of law, it stated the opposite prior to filing the
instant motion for reconsideration.
At oral argument, this Court asked the agency about
administrative support by political action committees sponsored by corporations and labor
organizations?” Cal. Med. Ass’n v. FEC, 641 F.2d at 622 n.1 (emphasis added).
certifying the question of the constitutionality of FECA as applied to the Burrington bequest
alone. “What would be wrong with me certifying that to the circuit and granting summary
judgment for the FEC with respect to everything else?” (Hr’g Tr. 64:7-9, Apr. 15, 2013).
Counsel for the FEC answered: “I don’t know that there’s anything wrong with it as a matter of
law. . . . I don’t know that there’s anything wrong with that, despite the fact that we dispute that
that’s the right course of action.” (Id. 65:2-7). The Court fails to see how it committed a “clear
error” of law by pursuing a course of action that agency counsel agreed was legally permissible
when specifically asked. The fact that the agency now appears to be having second thoughts
about its position does not satisfy the Rule 59(e) standard.
The Court Applied The Correct Level of Constitutional Scrutiny
The FEC is not correct when it claims this Court applied an excessively narrow tailoring
test instead of a closely drawn test. “Under the Supreme Court’s precedents, limits on campaign
expenditures are subject to strict scrutiny. But limits on contributions to candidates and political
parties are subject to ‘less rigorous scrutiny’ and are valid if they are ‘closely drawn’ to meet a
‘sufficiently important’ governmental interest.” Republican Nat’l Comm. v. FEC, 698 F. Supp.
2d at 156 (emphasis in original). As noted in LNC, the “closely drawn” standard has been
described as intermediate scrutiny. See In re Cao, 619 F.3d 410, 427 (5th Cir. 2010).
The FEC acknowledges that this Court applied the proper standard of constitutional
scrutiny to bequests generally, and it also acknowledges that there is a “flexibility associated
with closely drawn scrutiny.” (See Dkt. No. 54, at 8). The FEC takes issue, however, with this
Court’s determination that the Burrington bequest did not reveal any concerns regarding
corruption or the appearance of corruption. The FEC argues that this Court effectively decided
that the FEC must show evidence of corruption, (see id. at 8-9), but this is not the case. The
court stated, “[t]he LNC makes a persuasive argument that the Burrington bequest does not
implicate any valid anti-corruption concerns, and the FEC did not really respond to this argument
in its briefs.” LNC, 2013 WL 1097792, at *15. The Court did not require the FEC to present
affirmative evidence of corruption regarding the Burrington bequest, which the parties agree the
agency did not do. 2 Rather, the Court determined that the LNC made a substantial showing that
there was no danger of, or appearance of, corruption with the Burrington bequest.
Furthermore, the FEC acknowledges that closely drawn scrutiny has been used by courts
to strike down contribution limits. (See Dkt. No. 54, at 8) (citing McConnell v. FEC, 540 U.S.
93, 231-32 (2003) and N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293-95 (4th Cir. 2008)).
In line with the reasoning used by other courts, this Court reached a similar decision about
whether the Burrington bequest presented a non-frivolous question meriting review by the en
banc Court of Appeals. The FEC obviously disagrees with the Court’s decision. But mere
disagreement is not sufficient to prevail on a Rule 59(e) motion. See Alec L. v. Perciasepe, 2013
WL 2248001, at *5 (D.D.C. May 22, 2013).
The Court Construed 2 U.S.C. § 437h Properly
There is no need to tarry long on the FEC’s argument that § 437h cases “could
proliferate” as a result of this Court’s ruling. The D.C. Circuit’s recent opinion in Wagner v.
FEC, --- F.3d ----, 2013 WL 2361005 (D.C. Cir. May 31, 2013), suggests that the FEC’s concern
about certification of as-applied contribution challenges pursuant to 2 U.S.C. § 437h is not
shared by our Court of Appeals. The FEC made a similar argument in Wagner, and the Circuit
rejected it there with language that applies with equal force here: such an argument “belong[s] in
At oral argument, the FEC conceded there is no evidence of corruption regarding the
Burrington bequest. (See Hr’g Tr. 57:13-59:15 (“[I]t’s not surprising that there is no evidence of
corruption, say, related to the Burrington bequest, or examples of corruption leading up to this
a legislative hearing room, not a brief.” 2013 WL 2361005, at *7. As the Supreme Court
observed with respect to § 437h, “the task before us is not to improve the statute but to construe
it.” Cal. Med. Ass’n, 453 U.S. at 192, n.13. In LNC, this Court followed the language of a
statute passed by Congress and signed by the President of the United States. While the FEC
appears to disagree with what follows from that, nonetheless that does not constitute clear error
on this Court’s part.
This Court did not commit clear error when it ordered a question certified to the en banc
United States Court of Appeals for the District of Columbia Circuit. Therefore, the FEC’s
Motion to Alter or Amend the Judgment (Dkt. No. 48) is DENIED. An Order accompanies this
Digitally signed by Judge Robert
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court,
ou=Chambers of Honorable
Robert L. Wilkins,
Date: 2013.06.17 09:37:26 -04'00'
Date: June 17, 2013
ROBERT L. WILKINS
United States District Judge
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