Holmes v. Federal Election Commission

          Argued March 29, 2017

         On Certification of a Constitutional Question from the United States District Court for the District of Columbia (No. 1:14-cv-01243)

          Allen Dickerson argued the cause and filed the briefs for appellants. Owen D. Yeates entered an appearance.

          Erin 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.

          J. 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.

          OPINION

          SRINIVASAN, CIRCUIT JUDGE.

         The 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 candidates.

         In 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.

         The 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 election.

         Prohibited 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.

         Plaintiffs' 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.

         We 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.

         I.

         The 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 intact.

         The 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 candidates.

         A.

         Originally, 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, 1263.

         Those 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.

         In 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.)

         When 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.

         B.

         The 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.

         Plaintiffs 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 election.

         FECA 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.

         FECA 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.

         On remand, the district court certified its previous factual findings, together with the following question, for our en banc consideration:

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 ...