United States Court of Appeals, District of Columbia Circuit
March 29, 2017
Certification of a Constitutional Question from the United
States District Court for the District of Columbia (No.
Dickerson argued the cause and filed the briefs for
appellants. Owen D. Yeates entered an appearance.
Chlopak, Acting Assistant General Counsel, Federal Election
Commission, argued the cause for appellee. With her on the
brief were Lisa J. Stevenson, Deputy General Counsel, Kevin
Deeley, Associate General Counsel, and Steve N. Hajjar and
Charles Kitcher, Attorneys.
Gerald Hebert, Fred Wertheimer, and Donald J. Simon were on
the brief for amici curiae Campaign Legal Center and
Democracy 21 in support of appellee.
Before: Garland, Chief Judge, and Henderson, Rogers, Tatel,
Brown [*] ,
Griffith, Kavanaugh, Srinivasan, Millett, Pillard, and
Wilkins, Circuit Judges.
SRINIVASAN, CIRCUIT JUDGE.
Federal Election Campaign Act imposes limits on the amounts
that an individual may contribute to a candidate for federal
office. 52 U.S.C. § 30116(a)(1)(A). Those contribution
ceilings, known as FECA's base limits, aim to prevent the
appearance or actuality of corruption associated with large
campaign contributions to federal office holders and
2014, FECA's base limits permitted contributions of up to
$2, 600 to a candidate in each election in which she
competed. So, for instance, if a candidate prevailed in a
primary election and then competed in the general election, a
donor could have contributed $2, 600 to her for the primary
and another $2, 600 for the general. The same $2, 600 ceiling
would also have applied to any runoff election in which the
candidate took part.
plaintiffs in this case wished to make contributions to a
candidate in the general election in amounts exceeding the
$2, 600 per-election limit. In particular, they sought to
forgo making any contributions at all in the primary election
but then effectively to carry over to the general election
the amount they could have donated in the primary. That would
have enabled them to contribute $5, 200 to a candidate in the
general election alone, double the applicable limit for that
by FECA from doing so, plaintiffs brought an action
challenging the constitutionality of the statute's base
limits on individual contributions to candidates. According
to plaintiffs, FECA violates their First Amendment rights by
allowing separate contributions to a candidate in the primary
and general elections of $2, 600 each, but disallowing a
contribution in a corresponding total amount of $5, 200 if
confined to the general election alone.
argument amounts to a challenge to Congress's choice to
structure the base contribution limits for individuals as
per-election ceilings. When establishing those limits,
Congress had to pick some temporal frame of
reference: a contribution ceiling, to be effective, must
specify not only a maximum contribution amount (e.g., $2,
600) but also a timeframe in which that amount may be
expended (e.g., $2, 600 in each election). Plaintiffs, in
contending that they must be permitted to contribute twice
the maximum amount in one (general) election if they skip any
contribution in a different (primary) election, necessarily
contest Congress's choice of a per-election ceiling.
decline plaintiffs' invitation to upend the per-election
structure of FECA's base limits on individual
contributions to candidates. The Supreme Court, in
Buckley v. Valeo, 424 U.S. 1 (1976), rejected a
constitutional challenge to those ceilings, and that holding
remains undisturbed. The Court explained that, as long as a
contribution limit is not so low as to prevent candidates
from mounting effective campaigns, the judiciary would
generally defer to Congress's determination of the
limit's precise amount. We conclude the same is true of
Congress's intertwined choice of the timeframe in which
that amount may be contributed. As a result, we reject
plaintiffs' challenge to Congress's decision to
fashion FECA's base contribution limits for individuals
as per-election ceilings.
Federal Election Campaign Act (FECA) restricts the amounts
that an individual may contribute to any federal candidate or
political (e.g., party) committee. 52 U.S.C. §
30116(a)(1). Those limits on a person's contributions to
a particular candidate or political committee are referred to
as FECA's "base" limits, as distinguished from
the statute's "aggregate" limits on a
person's overall contributions to all candidates or
political committees, collectively. The Supreme Court
invalidated FECA's aggregate limits in McCutcheon v.
FEC, 134 S.Ct. 1434 (2014), but the base limits remain
base limits on contributions to federal candidates operate on
a per-election basis, whereas the base limits on
contributions to political committees operate on an annual
basis. 52 U.S.C. § 30116(a)(1). This case concerns the
per-election ceiling on individual contributions to
Congress limited an individual's contributions to federal
candidates solely through an aggregate, $5, 000 ceiling on
donations "during any calendar year." Hatch Act
Amendments of 1940, Pub. L. No. 76-753, § 13(a), 54
Stat. 767, 770. In 1974, Congress amended FECA to add the
base limits on contributions to candidates that are at issue
here. See Federal Election Campaign Act Amendments
of 1974, Pub. L. No. 93-443, § 101(a), 88 Stat. 1263,
base limits differed from the original ceiling on individual
contributions to candidates in two ways. First, whereas the
original ceiling had been an aggregate limit on a
person's collective contributions to all candidates,
Congress fashioned the base limits as a cap on the amount of
contributions to any individual candidate. Second, and of
particular relevance here, whereas the aggregate limits
operated as an annual ceiling, Congress structured the base
limits on individual contributions to candidates as a
per-election ceiling. And Congress defined an
"election" to include any "general, special,
primary, or runoff election." Federal Election Campaign
Act of 1971, Pub. L. No. 92-225 § 201, 86 Stat. 3, 8.
The result was that the base limits, as enacted in 1974,
imposed a $1, 000 ceiling on a person's contributions to
any given candidate in any given election. 88 Stat. at 1263.
2002, Congress increased the base contribution limit to $2,
000 per election and indexed it to inflation for future
cycles. Bipartisan Campaign Reform Act of 2002, Pub. L. No.
107-155, § 307(a), (d), 116 Stat. 81, 102-03 (codified
as amended at 52 U.S.C. § 30116(a)(1)(A), (c)). Congress
also kept in place (and increased) the aggregate limit on an
individual's contributions to all federal candidates.
See id. § 307(b) (codified at 52 U.S.C. §
30116(a)(3)(A)). But that aggregate ceiling, as noted, was
set aside by the Supreme Court in McCutcheon, 134
S.Ct. 1434. The Court, though, expressly left the base limits
"undisturbed." Id. at 1451 (plurality
opinion). (Because the plurality in McCutcheon
issued the controlling opinion, see Marks v. United
States, 430 U.S. 188, 193-94 (1977), we will treat that
opinion as the opinion of the Court.)
the Court decided McCutcheon in 2014, the base
limits, as adjusted for inflation, allowed an individual to
contribute up to $2, 600 per election to a given candidate.
See 134 S.Ct. at 1442. While the base limits have
increased to $2, 700 in the intervening years, see
Price Index Adjustments for Contribution and Expenditure
Limitations and Lobbyist Bundling Disclosure Threshold, 82
Fed. Reg. 10, 904, 10, 906 (Feb. 16, 2017), we will consider
$2, 600 as the operative per- election limit because 2014 is
the relevant election cycle for purposes of this case.
plaintiffs in this case, Laura Holmes and Paul Jost, are a
married couple residing in Florida. In the 2014 congressional
elections, plaintiffs each supported a different candidate,
one of whom ran for a California seat and the other of whom
ran for an Iowa seat.
made no contributions to their preferred candidates in the
primary election. But they both contributed the maximum
amount then permitted by FECA, $2, 600, to their preferred
candidates in the general election. And both would have
contributed an additional $2, 600 in the general election if
not for FECA's per-election contribution ceiling.
Plaintiffs' preferred candidates each lost in the general
enables any eligible voter to challenge the constitutionality
of the Act in federal district court. 52 U.S.C. § 30110.
In July 2014, plaintiffs brought this action against the
Federal Election Commission. They alleged that FECA's
per-election base contribution limit violates the First
Amendment and the equal protection component of the Fifth
Amendment. That was so, plaintiffs contended, because the
per-election limit allows contributing $2, 600 to a candidate
in each of the primary and general elections but bars
contributing the same cumulative amount of $5, 200 if
allocated entirely to the general election.
calls for a district court to certify non-frivolous
constitutional questions to the en banc court of appeals. 52
U.S.C. § 30110; Cal. Med. Ass'n v. FEC, 453
U.S. 182, 192 n.14 (1981). The district court determined that
plaintiffs' constitutional challenges involved
"questions of settled law" and thus did not warrant
certification to our court. Holmes v. FEC, 99
F.Supp.3d 123, 149 (D.D.C. 2015). A panel of this court
disagreed with respect to plaintiffs' First Amendment
claim, holding that no Supreme Court precedent squarely
addressed the "constitutionality of the Act's
per-election structure" for contributions to candidates.
Holmes v. FEC, 823 F.3d 69, 75 (D.C. Cir. 2016). The
panel therefore remanded the case to the district court to
make appropriate findings of fact and certify the relevant
constitutional question to this court sitting en banc.
Id. at 76.
remand, the district court certified its previous factual
findings, together with the following question, for our en
When federal law limits individual contributors to giving $2,
600 to a candidate for use in the primary election and $2,
600 to a candidate for use in the general election and denies
Plaintiffs the ability to give $5, 200 to a candidate solely
for use in the general election, does it violate
Plaintiffs' rights of ...