Full opinion text
MEMORANDUM OPINION ROBERT L. WILKINS, District Judge. Plaintiff Libertarian National Committee, Inc. (“LNC”) has been left a bequest that it is unable to take in one lump sum payment because Defendant Federal Election Commission (“FEC”) believes that, due to the large amount of the bequest, to do so would violate the Federal Election Campaign Act, 2 U.S.C. §§ 431-57. The FEC instead requires, as they have for decades, that the LNC receive annual payments from the bequest at the maximum contribution amount a living individual could donate. Thus the LNC will receive the full bequest, but over a number of years. The LNC does not want to wait, and challenges the constitutionality of the Federal Election Campaign Act (“FECA”) as applied to bequests. As part of this challenge, the LNC asks this Court to enjoin the FEC from enforcing the FECA with respect to bequests, and also requests this Court, pursuant to 2 U.S.C. § 437h, to certify one question to the en banc United States Court of Appeals for the District of Columbia. The FEC has opposed the motion for certification, and moved for summary judgment. The parties appeared before this Court for oral argument on the pending motions on February 25, 2013. Based on the parties’ briefs, the arguments presented to this Court, and a review of the relevant law, for the reasons stated below the LNC’s motion to certify (Dkt. No. 25) is GRANTED IN PART and DENIED IN PART, and the FEC’s motion for summary judgment (Dkt. No. 29) is GRANTED IN PART and DENIED IN PART. I. History of This Case Raymond Groves Burrington died on April 26, 2007. (Dkt. No. 13, ¶ 14). His will left a residuary bequest to the LNC of an amount eventually determined to be $217,734.00. (Id.). The LNC is the national committee of the Libertarian Party of the United States. (Dkt. No. 25-3, ¶ 1). Prior to the bequest, Burrington had made only one donation to the Libertarian Party: a $25.00 gift on May 19, 1998. (Id. ¶ 26). The Libertarian Party had no knowledge of Burrington’s bequest until after his passing. (Id. ¶ 25). Pursuant to 2 U.S.C. § 441a(a)(l), no “person” can contribute more than $32,400.00 to a national political committee annually. In addition, pursuant to 2 U.S.C. § 441i(a)(l), no political committee can “solicit, receive or direct to another person” any amount not subject to 2 U.S.C. § 441a(a)(1). The statute defines “person” as follows: “The term ‘person’ includes an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons, but such term does not include the Federal Government or any authority of the Federal Government.” 2 U.S.C. § 431(11). The FEC has determined that the word “person” in 2 U.S.C. § 441a(a)(1) includes testamentary estates. See, e.g., FEC Advisory Opinions 2004-02 & 1999-14. Thus, 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. (Dkt. No. 13, ¶ 15). The LNC objects to the statutory framework preventing the organization from receiving all of the money in one lump sum on the grounds that the framework “violates the First Amendment speech and associational rights of the LNC and its supporters.” (Id. ¶ 23). The LNC’s First Amended Complaint “seeks 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. ¶ 3). It has 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 rights? (Dkt. No. 25). The FEC requested that the parties first create a factual record “to determine which constitutional claims, if any, merit certification to the Court of Appeals.” (Dkt. No. 15, ¶ 6). The parties completed discovery in February 2012. (See Minute Order, Feb. 10, 2012). The LNC filed its Motion to Certify on May 4, 2012. (Dkt. No. 25). The FEC opposed that Motion, and filed a Motion for Summary Judgment, on July 6, 2012. (See Dkt. Nos. 28 & 29). At the conclusion of discovery in this case, the parties submitted proposed findings of fact. LNC objects to many of the FEC’s facts, claiming they improperly quote previous Supreme Court opinions and are thus not “facts” at all, present inadmissible hearsay, or both. (See Dkt. No. 30, at 2-3). The FEC responds by claiming that the facts the LNC objects to are legislative facts, which are “not subject to the Federal Rules of Evidence.” (Dkt. No. 37, at 1). Legislative facts are “general facts which help the tribunal decide questions of law and policy,” Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C.Cir.1992) (internal quotation marks omitted), are “without reference to specific parties,” and “need not be developed through evidentiary hearings,” Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1161-62 (D.C.Cir.1979). LNC also claims the FEC’s objections to certain facts are obfuscatory because they purport to present objections when they often merely restate the facts with different language. (See, e.g., Dkt. No. 36, at 6 (“This is not an objection — it is an admission rephrasing the proposed fact.”)). The Court overrules the LNC’s hearsay objections for the reasons set forth by the FEC; however, because the Court will narrow the issue as described infra, many of the facts proffered by the parties are no longer relevant. II. Legal Framework A. Campaign Finance Law As is well known, our Bill of Rights states that “Congress shall make no law ... abridging the freedom of speech....” U.S. CONST, amend. I. And “the 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, — U.S. —, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664 (2011) (internal quotation marks and citations omitted). But, of course, this does not end this matter, because Congress has passed, and the Supreme Court has upheld, laws that purport to limit speech — particularly in the manner of campaign contributions. They have done so in part to prevent corruption, or the appearance of corruption. A brief overview of the state of the law regarding campaign finance is warranted. This will look at the current state of affairs with a particular focus on the law with respect to campaign contributions — what is at issue in this litigation — and will address campaign expenditures only in passing. The first law limiting the unrestricted flow of money into politics came more than 100 years ago. See McConnell v. FEC, 540 U.S. 93, 115, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (discussing history, including passage of the Tillman Act in 1907), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). But the bedrock case regarding limits on contributions related to political efforts remains Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Buckley involved a challenge to the constitutionality of the 1974 FECA amendments, as well as related provisions of the Tax Code. Id. at 6, 96 S.Ct. 612. The case dealt with contributions, expenditures, and reporting requirements; this analysis will focus on only the first of those three. The Supreme Court did not hold contribution limits to the same constitutional scrutiny as expenditure limits, stating that “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. at 20, 96 S.Ct. 612. This is so because a contribution limitation “involves little direct restraint on [one’s] political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” Id. at 21, 96 S.Ct. 612. Ultimately, the Supreme Court concluded that the FECA’s limits on contributions withstood a facial constitutional challenge. “Congress was surely entitled to conclude ... that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.” Id. at 28, 96 S.Ct. 612. The Buckley Court considered whether limiting contributions would make it more difficult for minor parties to amass sufficient funds. They concluded that contribution limits “would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions.” Id. at 33, 96 S.Ct. 612. And in addressing an overbreadth challenge to contribution limits, namely the proposition that most large contributors do not seek improper influence, the Court agreed with that proposition generally, but nonetheless stated that because of the difficulty in determining suspect contributions, “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.” Id. at 30, 96 S.Ct. 612. In sum, “[i]t has ... been plain ever since Buckley that contribution limits would more readily clear the hurdles before them” than expenditure limits. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (citation omitted). Following Buckley, challenges to contribution limits continued to reach the Supreme Court in various forms. In California Medical Ass’n v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981), appellants challenged the constitutionality of limits on contributions to multicandidate political action committees, and the court found no First Amendment violation to the rights of contributors. Id. at 184-85, 101 S.Ct. 2712. A state campaign finance law was challenged in Shrink Missouri Gov’t PAC, and the Court upheld its contribution limits to candidates, finding that a contribution limit has prevented effective advocacy only where it was “so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.” 528 U.S. at 397, 120 S.Ct. 897 Then came McConnell, which, among other issues, addressed challenges to limits on “soft money” contributions to national political parties. Previously under the FECA, there existed a significant difference between so-called “hard” and “soft” money contributions. The FECA limited hai’d money contributions, i.e., contributions to national parties for the purpose of influencing a federal election, but did not limit soft money contributions, i.e., money for other purposes, including “influencing state or local elections.” See McConnell, 540 U.S. at 122-23, 124 S.Ct. 619. Donors who gave enough soft money often received special, preferential access to party leaders and elected officials. See id. at 130 & n. 30, 151-52, 124 S.Ct. 619 (describing access to Democratic and Republican leaders). After reviewing the record, the Supreme Court found that “[t]he idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible.” Id. at 144, 124 S.Ct. 619. Seeking to “plug the soft-money loophole,” Congress passed the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81, adding, among other provisions, 2 U.S.C. § 441i(a) to FECA, which “prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money.” McConnell, 540 U.S. at 133, 124 S.Ct. 619 (citing 2 U.S.C. § 441i(a)). Parties brought a facial First Amendment challenge to the new FECA § 441i(a), “as well as challenges based on the Elections Clause, U.S. Const., Art. I, § 4, principles of federalism, and the equal protection component of the Due Process Clause.” 540 U.S. at 134, 124 S.Ct. 619. None of these challenges were successful. The McConnell Court found that national parties “sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes.” Id. at 155, 124 S.Ct. 619. When reviewing the BCRA’s ban on large soft money contributions to national party committees, the Supreme Court stated that “common sense” along with the ample record “confirm[ed]” that soft money contributions “have a corrupting influence or give rise to the appearance of corruption.” Id. at 145, 124 S.Ct. 619. The Court did so using “[t]he less rigorous standard of review we have applied to contribution limits (Buckley’s ‘closely drawn’ scrutiny)....” Id. at 137, 124 S.Ct. 619. But the Court presciently concluded: “We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet.” Id. at 224, 124 S.Ct. 619. In Randall v. Sorrell, 548 U.S. 230, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006), the Supreme Court (in a plurality opinion) struck down the contribution limits found in a Vermont statute. Vermont imposed strict limits on the amount individuals, political parties, and political committees could contribute to candidates for state office. For example, the cap for governor, lieutenant governor, and other statewide offices was $400, and was not indexed for inflation. See 548 U.S. at 238, 126 S.Ct. 2479. The Supreme Court described the test for determining whether the Vermont statute satisfied constitutional scrutiny as whether the statute’s “contribution limits prevent candidates from amassing the resources necessary for effective [campaign] advocacy, whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny.” Id. at 248, 126 S.Ct. 2479 (citation and internal quotation marks omitted). The plurality opinion concluded that the Vermont statute was unconstitutional because it “would reduce the voice of political parties in Vermont to a whisper.” Id. at 259, 126 S.Ct. 2479 (citation and internal quotation marks omitted). In 2010, Citizens United overruled previous Supreme Court precedent and no doubt is a historic opinion, but generally the case is not about contribution limits. At issue was a ban on independent corporate expenditures, which the Court struck down because it found that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” 130 S.Ct. at 910. The Citizens United Court did not “reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.” Id. at 909. The Court did note, however, that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” Id. at 910. Two months after Citizens United, together our District and Circuit courts issued two election law cases on the same day. In SpeechNow.org v. FEC, 599 F.3d 686 (D.C.Cir.2010) (en banc), the nonprofit organization Speechnow.org availed itself of 2 U.S.C. § 437h on five constitutional questions, three related to contribution limits. Because Speechnow.org planned to “operate exclusively through independent expenditures ... not made in concert or cooperation with ... a political party committee or its agents,” 599 F.3d at 689 (internal quotation marks and citations omitted), the questions related to whether the contribution limits in 2 U.S.C. § 441a(a) violated the First Amendment as applied to the organization, see id. at 690-91. The court’s decision in SpeechNow.org was “[i]n accordance with” Citizens United, 599 F.3d at 689, because that “Court held that the government has no anti-corruption interest in limiting independent expenditures. Of course, the government still has an interest in preventing quid pro quo corruption. However, after Citizens United, independent expenditures do not implicate that interest.” Id. at 693 & n. 3 (emphasis in original). Thus, the court ultimately concluded that limiting contributions by individuals to political committees that made only independent expenditures violated the First Amendment. Id. at 696. In Republican Nat’l Comm. v. FEC, 698 F.Supp.2d 150 (D.D.C.) (three judge court), aff'd — U.S. —, 130 S.Ct. 3544, 177 L.Ed.2d 1119 (2010), several entities brought an as-applied challenge to the BCRA regarding limits on contributions to political parties, claiming the First Amendment entitled them to raise and spend soft money for various activities that “lack sufficient connection to a federal election.” Id. at 155 (citation omitted) (emphasis in original). The parties submitted affidavits stating they would not, among other things, offer any access to federal candidates or officeholders to soft money donors. Id. As to the standard to apply, the Court affirmed that “closely drawn” scrutiny applies to contribution limits rather than strict scrutiny. Id. at 156 (citing McConnell, 540 U.S. at 138-41, 124 S.Ct. 619). In its analysis, the Court noted that “Citizens United did not disturb McConnell’s holding with respect to the constitutionality of BCRA’s limits on contributions to political parties.” Id. at 153 (citation omitted). The Court stated that the parties were “asking us to overrule McConnell’s holding with respect to the ban on soft-money contributions to national political parties. As a lower court, we of course have no authority to do so.” Id. at 157. And regarding the facial versus as-applied distinction, the Court stated: “In general, a plaintiff cannot successfully bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision. Doing so is not so much an as-applied challenge as it is an argument for overruling a precedent.” Id. Most recently, on February 19, 2013, the Supreme Court noted probable jurisdiction in McCutcheon v. FEC, 893 F.Supp.2d 133 (D.D.C.2012) (three judge court). See http://www.supremecourt.gov/qp/12-00536 qp.pdf. In McCutcheon, a three judge panel found FECA’s aggregate contribution limits constitutional. That panel concluded: “Plaintiffs raise the troubling possibility that Citizens United undermined the entire contribution limits scheme, but whether that case will ultimately spur a new evaluation of Buckley is a question for the Supreme Court, not us.” McCutcheon, 893 F.Supp.2d at 142. This Court ordered the parties to submit their positions on “whether the Supreme Court’s decision regarding McCutcheon v. FEC should impact further proceedings in this case.” Minute Order, Feb. 21, 2013. The parties stated that they “agree that the Supreme Court’s action in McCutcheon should not delay this Court’s consideration of the LNC’s pending motion for certification pursuant to 2 U.S.C. § 437h and the Commission’s pending motion for summary judgment.” (Dkt. No. 39, at 1). B. FECA Motion to Certify The FECA provides at 2 U.S.C. § 437h that: The [Federal Election] Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President 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. 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. The provision was introduced by Senator Buckley himself. He stated: It merely provides for expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time. 120 Cong. Rec. 10562 (1974). The only person in the House of Representatives who appears to have commented on 2 U.S.C. § 437h was Representative Frenzel, who stated: I believe within this conference report there are at least 100 items questionable from a constitutional standpoint.... I do call attention ... to the fact that any individual under this bill has a direct method to raise these questions and to have those considered as quickly as possible by the Supreme Court. 120 Cong. Rec. 35140 (1974). “Although the language of the statute requires the district court to certify all constitutional questions, courts have held that this mandatory phrasing should not be read to require them automatically to certify every constitutional question to an en banc court of appeals.” Goland v. United States, 903 F.2d 1247, 1257 (9th Cir.1990) (emphasis in original). Section 437h “cannot properly be used to compel federal courts to decide constitutional challenges in cases where the resolution of unsettled questions of statutory interpretation may remove the need for constitutional adjudication,” Cal. Med. Ass’n, 453 U.S. at 192 n. 14, 101 S.Ct. 2712 (citations omitted), and does not require certification of “frivolous” or “settled principles of law,” Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir.1992) (citing Cal. Med. Ass’n, 453 U.S. at 192 n. 14, 101 S.Ct. 2712). In Cal. Med. Ass’n, Justice Marshall describes the categories of cases that merit 2 U.S.C. § 437h certification as those that are “neither insubstantial nor settled,” 453 U.S. at 192 n. 14, 101 S.Ct. 2712—suggesting that, in the context of 2 U.S.C. § 437h, “frivolous” and “insubstantial” have the same meaning. See also Mott v. FEC, 494 F.Supp. 131, 134 (D.D.C.1980) (stating a district court “may initially review a complaint to determine if it presents a ripe and substantial constitutional controversy before certifying the questions to the en banc court of appeals”) (footnote omitted) (emphasis added). The Goland case offers the following perspective on certification: Once a core provision of FECA has been reviewed and approved by the courts, unanticipated variations also may deserve the full attention of the appellate court. At the same time, not every sophistic twist that arguably presents a “new” question should be certified. Once the statute has been thoroughly reviewed by the Court, questions arising under “blessed” provisions understandably should meet a higher threshold. 903 F.2d at 1257. In addition, the Supreme Court has stated that 2 U.S.C. § 437h should be construed narrowly, in part because it creates “a class of cases that command the immediate attention of ... the courts of appeals sitting en banc, displacing existing caseloads and calling court of appeals judges away from their normal duties for expedited en banc sittings.” Bread Political Action Comm. v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982). Goland stated that the standard is “similar to that of a single judge presented with a motion to convene a three judge court to hear constitutional challenges.... Such a standard may more closely resemble that applied under Rule 12(b)(6)....” 903 F.2d at 1257-58 (citing Mott, 494 F.Supp. 131 & Clark v. Valeo, 559 F.2d 642 (D.C.Cir.), aff'd 431 U.S. 950, 97 S.Ct. 2667, 53 L.Ed.2d 267 (1977)). The standard was recently articulated as “somewhere between a motion to dismiss — where no factual review is appropriate — and a motion for summary judgment — where the Court must review for genuine issues of material fact.” Cao v. FEC, 688 F.Supp.2d 498, 503 (E.D.La. 2010), aff'd sub nom. In re Cao, 619 F.3d 410 (5th Cir.2010). “[S]ome review of the facts is inherently necessary to determine if a colorable claim has been raised.” Id. at 502. “[I]t follows that any question that the Court finds ‘frivolous’ is also appropriate for summary judgment.” Id. at 503. A court can grant summary judgment, of course, when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). III. Analysis A. Standing As an initial matter, this Court must determine whether the LNC has standing to assert the rights, if any, of Burrington’s estate. Although the parties did not fully address the issue in their briefs, the Court has an obligation to confirm its own jurisdiction, and the D.C. Circuit has instructed that “[w]hen there is doubt about a party’s constitutional standing, the court must resolve the doubt, sua sponte if need be.” Lee’s Summit, Mo. v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C.Cir.2000) (citations omitted). Indeed, where the Court has doubts about a party’s standing, it is reversible error to simply bypass the issue of standing and to proceed to the merits of the case, even “where the merits question may be easily answered.” Dominguez v. UAL Corp., 666 F.3d 1359, 1361-62 (D.C.Cir.2012). The D.C. Circuit has construed 2 U.S.C. § 437h to allow a plaintiff to bring a challenge on behalf of others, provided they fall within the terms of the statute and satisfy the requirements of Article III standing. In International Ass’n of Machinists & Aerospace Workers v. FEC, 678 F.2d 1092 (D.C.Cir.1982) (en banc), aff'd 459 U.S. 983, 103 S.Ct. 335, 74 L.Ed.2d 379 (1982), the FEC argued that standing was “confined to plaintiffs who put in issue their First Amendment rights qua voters.” 678 F.2d at 1098. Calling this a “pinched” construction of § 437h, the D.C. Circuit rejected a reading of the statute that would only allow voters to raise constitutional issues in relation to their rights as voters. Id. As a result, the court in Int’l Ass’n of Machinists found standing for plaintiffs to bring a constitutional challenge “vicariously” to a FECA provision that permitted corporate PACs to solicit contributions from career employees of the corporation, even though none of the plaintiffs were career employees covered by the provision. See id. at 1099. “Congress can authorize any plaintiff who meets the Article III tests of injury to assert the rights of others, since the general rule against asserting the rights of others is simply a prudential rule.” 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.9.3 n. 103 (3d ed. 2008) (citing Int’l Ass’n of Machinists). As a result, this Court concludes that the LNC has standing. The LNC satisfies the core elements of Article Ill’s case-or-controversy requirement, because it alleges an injury connected to the FEC’s conduct — the prevention of obtaining immediate control of the entire Burrington bequest — that would be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The relevant statute here, 2 U.S.C. § 437h, grants national political committees such as LNC the right to bring an action “to construe the constitutionality of any provision of this Act.” Following Int’l Ass’n of Machinists, the LNC can challenge this provision and assert the First Amendment interests of Burrington or others to support its claim. B. Proper Level of Constitutional Scrutiny The Supreme Court has consistently held that contribution limits should be subject to constitutional scrutiny that is less rigorous than the strict scrutiny applied to expenditure limits. And the FEC has consistently held that testamentary bequests are subject to the limits in 2 U.S.C. § 441a(a)(l). The LNC has not presented a convincing reason to stray from this precedent. 1. Strict versus Intermediate scrutiny Contribution limits and expenditure limits receive different constitutional scrutiny. It is “simply untrue in the campaign finance context that all burdens on speech necessitate strict scrutiny review.” McConnell, 540 U.S. at 140 n. 42, 124 S.Ct. 619 (citation and quotation marks omitted). “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). The “closely drawn” standard has been described as intermediate scrutiny. See In re Cao, 619 F.3d 410, 427 (5th Cir.2010). Though courts have consistently held that the standard to apply to contribution limits is akin to intermediate scrutiny, see, e.g., SpeechNow.org, 599 F.3d at 692, and Republican Nat’l Comm. v. FEC, 698 F.Supp.2d at 156, the LNC argues that they have done so only with respect to the rights of the living, and this conclusion should not apply to contribution limits related to bequests, which should receive strict scrutiny. Nowhere in any opinion has the Court ever suggested that certain contributions should receive a different level of scrutiny than others, and this Court is bound by the uninterrupted, decades-long precedent of the Supreme Court. For that reason, the level of scrutiny at issue here should be, as it has been to all cases involving contribution limits since Buckley, intermediate scrutiny. 2. FEC interpretation of “person” in 2 U.S.C. § 441a(a)(l) In 1988, the FEC issued an Advisory Opinion to the National Maritime Union Political and Legislative Organization on Watch. FEC Advisory Op. 1983-13. The organization received money from an estate beyond what they could accept in a single year. They proposed to accept the full gift, withdraw an amount under the legal limit annually, and maintain the balance in a special escrow account that would be maintained in their name as a separate bank account. The FEC issued an Opinion stating that “given the absence of any specific prohibition in the Act as regards contributions from a decedent’s estate (pursuant to a specific testamentary bequest), and given the expansive definition of the term ‘person’ which, in turn, determines the applicability of the monetary limits in 2 U.S.C. 441a(a)(l), the Commission concludes that specific testamentary bequests to a political committee are contributions when distributed by the decedent’s estate and are subject to the limits of 441a(a)(l).” (Dkt. No. 25-10 (FEC Advisory Op. 1983-13), at 2). “[T]he Commission views the testamentary estate of a decedent as the successor legal entity to the testator and thus will apply the Act and its limits as the alter ego of the living testator.” (Id.). In 1999, the FEC issued an Advisory Opinion to the Council for a Livable World. FEC Advisory Op. 1999-14. Here the FEC determined that if a testamentary gift in excess of an annual limit is placed in a political committee’s escrow account that it can control, it is unlawful under the FECA. “[T]he Commission has concluded, in previous opinions, that a testamentary estate is the successor legal entity to the testator and qualifies as a person under the Act that would be subject to the same limitations and prohibitions applicable to the decedent in the decedent’s lifetime. Advisory Opinions 1988-8, 1986-24, and 1983-13.” (Dkt. No. 25-7 (FEC Advisory Op. 1999-14), at 2). This Opinion superseded earlier opinions to the extent that a political committee could no longer exercise control over all funds from a bequest, such as deciding to withdraw less than the maximum annual contribution one year as part of an investment strategy. In 2004, the FEC issued an Advisory Opinion to the National Committee for an Effective Congress (“NCEC”). FEC Advisory 0p.2004-02. The NCEC wanted to accept funds from testamentary trusts beyond their control. The FEC reiterated that “the Commission has concluded that the testamentary estate of a decedent is the successor legal entity to the testator and qualifies as a ‘person’ under the Act that is subject to the same limitations and prohibitions applicable to the decedent in the decedent’s lifetime.” (Dkt. No. 25-6 (FEC Advisory Op.2004-02), at 3 (citing FEC Advisory Op. 1999-14)). The FEC noted that a contribution is made “when the contributor relinquishes control over the contribution,” and that occurs when the contribution “is delivered by the contributor to the ... political committee.” 11 C.F.R. § 110.1(b)(6). Because the NCEC would be accepting contributions from testamentary trusts beyond their control, the FEC stated that they may accept the contributions, so long as they did not exceed the applicable annual limits. 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, U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). FECA states that “[t]he term ‘person’ includes an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons, but such term does not include the Federal Government or any authority of the Federal Government.” 2 U.S.C. § 431(11). The FEC’s interpretation that a decedent’s estate qualifies as a person follows logically from the basic tools of statutory interpretation. Under the canon of ex-pressio unius est exclusio alterius, items not listed are assumed to be covered by the statute. Here Congress specifically excluded certain categories from the definition of person. It did not exclude a decedent’s estate. This indicates that a decedent’s estate should be understood as included in the term “person.” In addition, the statute lists what the term person “includes,” and thus that list is meant to be expansive. This too accords with an understanding that “person” includes a decedent’s estate. * * * * * * With the understanding that the challenge brought here by the LNC is to be considered under intermediate scrutiny, and that the FEC’s interpretation that testamentary bequests are considered persons under the FECA is reasonable, this Court now turns to the question presented for certification. C. The Question as Framed is Frivolous and/or Insubstantial 1. The question as presented goes beyond a proper as-applied challenge The LNC cannot bring a facial challenge regarding contribution limits, but instead must bring an as-applied challenge. The Supreme Court upheld contribution limits to a facial challenge nearly forty years ago in Buckley, and that ruling remains good law. In addition, that Court noted that “any attempt to exclude minor parties and independents en masse from the Act’s contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.” Buckley, 424 U.S. at 34-35, 96 S.Ct. 612. Furthermore, it is “reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process.” McConnell, 540 U.S. at 159, 124 S.Ct. 619. Therefore a facial challenge to contribution limits must fail. But, the Supreme Court has reaffirmed that “a nascent or struggling minor party can bring an as-applied challenge if [Section 441i(a) ] prevents it from ‘amassing the resources necessary for effective advocacy.’” McConnell, 540 U.S. at 159, 124 S.Ct. 619 (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612). Thus the LNC, as a so-called minor party, can bring an as-applied challenge, but that ability is not without limits. The as-applied challenge the LNC seeks to bring here is not proper because the relief sought would not apply solely to themselves, but would extend to other entities not before this Court. In this case, the question presented by the LNC challenges the constitutionality of FECA as applied to all bequests to all national political parties, not just the constitutionality of FECA as applied to the Burrington bequest to the LNC. Although an as-applied challenge can sometimes raise issues beyond those immediately faced by the parties to a suit, the Supreme Court has repeatedly cautioned that, in campaign finance cases in particular, it may not be appropriate to decide an as-applied challenge based on facts not before the court. For example, in FEC v. Wisconsin Right to Life, 551 U.S. 449, 481 n. 10, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (opinion of C.J. Roberts & J. Alito), the Supreme Court refused to “pass on” an argument in an as-applied challenge because it was not applicable to the plaintiffs factual circumstances. Similarly, in Cal. Med. Ass’n, 453 U.S. at 197 n. 17, 101 S.Ct. 2712, the Supreme Court refused to consider a “hypothetical application of the [Federal Election Campaign] Act” that raised First Amendment concerns not present in the as-applied challenge made by the California Medical Association. See also FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (focusing on whether the FECA was sufficiently tailored to the “associational interests asserted by respondent”). Cf. United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (“The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases.... ”). The question the LNC has moved to certify is not simply about the Burrington bequest, but about all bequests to all political parties, and if certified, the question would confront the en banc Court of Appeals with hypothetical questions about parties not involved in this litigation. This Court must respect the caution counseled by the Supreme Court in as-applied campaign finance cases as a result. Further, the as-applied challenge brought by the LNC in this case is impermissible because it raises issues that the Supreme Court has already addressed. “In general, a plaintiff cannot successfully bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision. Doing so is not so much an as-applied challenge as it is an argument for overruling a precedent.” Republican Nat’l Comm. v. FEC, 698 F.Supp.2d at 157. Here, the LNC challenges FECA as unconstitutional as applied to all bequests, not just the Burrington bequest. But bequests other than Burrington’s may very well raise the anti-corruption concerns that motivated the Buckley and McConnell Courts to dismiss a facial attack on contribution limits. The LNC concedes that it is possible for a bequest to raise valid anti-corruption concerns, such as a “testamentary quid pro quo ... soliciting a bequest from a terminally-ill individual.” (Dkt. No. 25-1, at 27). Nonetheless, the LNC argues that “[t]he anti-corruption rationale for limiting contributions [from bequests] is, at best, theoretical....” (Dkt. No. 25-1, at 21). But making one’s bequest known before death could be treated just as a contribution is, as suggested by how other groups treat such bequests. (See Dkt. No. 24, ¶¶ 112-14, discussing the National Rifle Association, Nature Conservancy, and Kennedy Center). A bequest may also help friends or family of the deceased have access to political officeholders and candidates. For example, the LNC’s Rule 30(b)(6) witness in this case, William Redpath, testified that after Joseph A. Reitano left the LNC a $19,331.40 bequest, his son could have been allowed to become a member of the LNC’s Chairman’s Circle in his father’s place. (See Dkt. Nos. 24 & 30, ¶ 122). The FEC states that testators have already noted in bequests what specific candidates should benefit, and also that an estate trustee has contacted the Democratic National Committee about a $200,000 bequest to ask that it be used to defeat a particular candidate. (Dkt. No. 28, at 35). Thus the agency’s argument that political committees could offer access to the donor’s heirs or representatives upon the production of a generous will, or 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, is sensible and persuasive. (See Dkt. No. 28, at 36). That there is not a record replete with well-documented problems associated with corruption from large bequests is a red herring. The LNC complains that the FEC is only pointing to hypothetical, but the agency cannot point to examples of corruption or the appearance of corruption from bequests to political committees in large part because the FECA contribution limit has applied to them for the last 35 years. (See Dkt. No. 38, at 15). The LNC argues that because testators are “not alive to receive the benefits of a quid pro quo,” “[t]his distinction is substantial enough that the Commission’s comparison to soft money is inappropriate, and its motion for summary judgment must be denied.” (Dkt. No. 34, at 26). The LNC seems to be suggesting that, since the FEC lacks a significant set of examples other than the many examples of the problems that led to the FECA and BCRA, they should allow unlimited bequests, see if this too leads to an intolerable situation, and only then ban this form of unlimited contributions. (Id. at 9 (arguing that the “issue posed by this case is whether bequests are, or are not, as likely as individual contributions to lead to corruption or its appearance”) (emphasis added)). The Supreme Court has. already closed this door in Buckley, McConnell, and other cases by rejecting facial attacks to contribution limits using intermediate scrutiny. By making their donation known while alive, testators could command and demand access. The scope of the “pernicious practices” involved in large direct contributions to political committees “can never be reliably ascertained.” Citizens United, 130 S.Ct. at 908 (quoting Buckley). That is why the Supreme Court has upheld contribution limits: they are “preventative.” Id. This indicates it should be the same for bequests as for other contributions. As the FEC points out, the LNC seeks to eliminate the restrictions on all bequests to all political parties, not just to smaller parties such as the LNC. (See Dkt. No. 38, at 13 n. 5). Even assuming that the limit on bequests unconstitutionally harms struggling minor parties, as the LNC claims, the LNC has not sought relief solely on behalf of struggling minor parties. Rather, the question they have proposed for certification is far broader, and purports to seek relief on behalf of all parties. Thus, the arguments about the effect of FECA limits on the LNC’s ability to express its message as a struggling minor party or to engage in effective advocacy, even if credited, do not support the claim as articulated, which seeks relief on behalf of all national parties and all bequests. It is not for this Court to certify to the en banc Court of Appeals an as-applied question laden with hypotheticals about the constitutionality of contribution limits under FECA, especially when the Supreme Court has already addressed parts of the question in a facial challenge. 2. The question as presented includes an issue mooted by the briefs Another reason that certifying the question as drafted by the LNC would not be appropriate is that the issue of solicitation was mooted in part by the parties’ briefs. LNC argued that because it could not solicit bequests over the maximum even if they were parsed out annually at the legal limit, this too violated the First Amendment. (Dkt. No. 13, ¶ 25). The relevant FECA provision, 2 U.S.C. § 441i(a)(l), states that a 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.” The FEC denies that this provision forbids national political parties from soliciting a bequest that exceeds FECA’s annual limits, provided they “aceept[] or reeeive[] funds from that bequest only in amounts that comply with FECA’s annual contribution limits and in a manner consistent with the Commission’s relevant regulations and advisory opinions.” (Dkt. No. 15, ¶ 2). The LNC argues that because the statutory language is “are not subject” rather than “would not be subject,” the FEC is wrong, but the LNC agrees that because of the agency’s concession, “that is a matter for another day.” (Dkt. No. 25-1, at 12-13) (emphasis in original). But were this Court to certify the question as drafted, despite the LNC’s seeming acknowledgement that at least part of the solicitation issue is no longer in dispute, the Court of Appeals would be tasked with answering the question anyway. This would be a further abdication of this Court’s responsibility, as explained further below D. Role of the District Court to Re-frame the Question Several times during oral argument on the parties’ pending motions, the Court inquired of the parties about the role of this Court, if any, in amending the question presented by the LNC. The Court asked counsel for the LNC if the issue was “all or nothing,” meaning are there only two choices — to certify the question as presented, or grant FEC’s summary judgment motion. Counsel responded: “That’s a difficult thing for me to answer, Your Honor, as I’m sure you’re aware.” (Tr. 28:5-6). He later added “it may be within Your Honor’s power to rewrite things. I’m not aware of a precedent on that....” (Tr. 31:7-8). And when asked whether this Court had the authority to amend the question, counsel for LNC responded: “I don’t have a position on Your Honor’s authority to modify the question.” (Tr. 32:9-13). Counsel for the FEC, when asked about the same issue, stated that amending the question was in the Court’s discretion, (Tr. 58:6-8), adding, “I don’t know that there’s anything wrong with that.... ” (Tr. 60:4). The Court researched this issue following argument, and it appears that longstanding precedent supports this Court’s discretion in crafting and/or amending any questions certified to the Court of Appeals. Before Buckley reached the Supreme Court, District Judge Howard Corcoran of this court transmitted the entire case to the en banc Court of Appeals. Buckley v. Valeo, 387 F.Supp. 135 (D.D.C.1975). The Court of Appeals remanded the case to Judge Corcoran to (1) “[i]dentify constitutional issues in the complaint,” (2) take evidence, (3) make findings of fact, and “[c]ertify to [the D.C. Circuit Court of Appeals] constitutional questions arising from steps 1, 2, and 3.” Buckley v. Valeo, 519 F.2d 817, 818 (D.C.Cir.1975) (en banc). The Court of Appeals later described Judge Corcoran’s role as taking part in “the formulation of constitutional questions to be certified” to it. Buckley v. Valeo, 519 F.2d 821, 835 (D.C.Cir.1975) (en banc) (emphasis added). Because the Court of Appeals instructed Judge Corcoran to identify questions, and affirmed his role in formulating those questions, Buckley’s history strongly suggests the District Court has an active, rather than passive, role in the certification process under 2 U.S.C. § 437h. The role of the district court in formulating the constitutional questions certified pursuant to Section 437h has been affirmed and endorsed by several other courts as well. In Bread Political Action Committee v. FEC, 635 F.2d 621, 625 n. 4 (7th Cir.1980), the Seventh Circuit approved when “[t]he district court polished plaintiffs’ draft questions into their present form.” In Khachaturian v. FEC, the Fifth Circuit described the role of the district court as follows: “If it concludes that colorable constitutional issues are raised from the facts, it should certify those questions to us.” 980 F.2d at 332 (citation omitted). That court was even more explicit in a recent decision. In Cao v. FEC, the district court “exercisefd] its discretion in fashioning a question for the Fifth Circuit that more precisely captures the Constitutional difficulty raised by the plaintiffs’ arguments.” 688 F.Supp.2d at 542. The Fifth Circuit blessed Judge Berrigan’s reformulation of questions offered by plaintiffs, referring to the district court as “abiding by its proper role in addressing a 2 U.S.C. § 437h challenge.” In re Cao, 619 F.3d at 414. Therefore, even though the question as framed by the LNC does not merit certification, this does not end the matter. This Court has the power, and apparently the duty, to identify the constitutional issues and to reframe the question as necessary so that any proper non-frivolous question is certified to the en banc Court of Appeals. As discussed above, there is ample, uncontested precedent for doing so. Therefore this Court now turns to whether it is proper to do so in this case. E. Question to Certify Mr. Burrington is now deceased, so he currently cannot exercise any First Amendment right of association. The LNC concedes that it does not knowingly “associate with the dead” and that Burrington’s associational rights are not at issue. (See Dkt. No. 25-1, at 14). Thus, in the literal sense, the FECA restriction (as enforced by the FEC) on the Burring-ton bequest is not a “contribution limit involving significant interference with associational rights [that] must be closely drawn to serve a sufficiently important interest.” SpeechNow.org, 599 F.3d at 692 (citation omitted). The LNC’s argument that Burrington’s expressive rights are at issue is insubstantial. For example, the LNC argues that a law review article by Professor David Horton “comprehensively — and compellingly — addressed” the issue of “testation’s expressive aspects,” suggesting the article reveals scholarly unanimity for the proposition that the Constitution limits testamentary freedom. (Dkt. No. 34, at 19). But the LNC neglects to note that Professor Horton acknowledges that “there has long been consensus that the Constitution does not apply to limits on testamentary freedom,” and Professor Horton’s article “challenge[s] the conventional wisdom and argue[s]” for a different view. David Horton, Testation and Speech, 101 Geo. L.J. 61, 61, 90 (2012). And while the LNC argues that Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) makes it “clear [that] decedents have the constitutional right to devise property,” (Dkt. No. 34, at 18), Professor Horton’s article concedes that “scholars unanimously reached the same conclusion: Hodel only bars the government from stripping owners of their ability to transmit an asset after death by any means ... without providing just compensation,” 101 Geo. L.J. at 89. This Court agrees with Professor Horton’s assessment of Hodel. Given that the FEC is not taking one penny away from the LNC, any reliance on Hodel is misplaced. Moreover, the authorities cited by the FEC confirm that Burrington’s testamentary estate has no First Amendment rights. See, e.g., United States v. Maciel-Alcala, 612 F.3d 1092, 1098 (9th Cir.2010) (“[O]ne cannot violate a deceased person’s civil or constitutional rights.”) (citation omitted); Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 749 (10th Cir.1980) (“[T]he civil rights of a person cannot be violated once that person has died.”) (citations omitted). It is likely for these reasons that the LNC also seems to disclaim the argument that it is seeking to enforce the expressive rights of Burrington’s estate. As opposed to the broader question proposed in its motion for certification, the LNC argues in its Reply brief that the relevant question is whether the LNC’s First Amendment rights have been violated. (See Dkt. No. 34, at 7). Thus, the LNC also argues that it has a First Amendment right to receive contributions, through bequests or otherwise. The argument is based primarily on the case of Dean v. Blumenthal, 577 F.3d 60 (2d Cir.2009). In Dean, a candidate for Connecticut Attorney General challenged a prohibition on receiving campaign contributions from people employed at private law firms doing work for the state. The Second Circuit stated that, during the relevant time period in that case, “it is clear that a constitutional right to receive campaign contributions was not clearly established, but it is ‘far from obvious whether in fact there is such a right.’ ” Id. at 68 (quoting Pearson v. Callahan, 555 U.S. 223, 237, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Unlike the district court, which had found such a right inconsistent with Randall, the Second Circuit stated: “To the contrary, although Randall did not recognize a First Amendment right to receive campaign contributions, its analysis did not foreclose such recognition.” Dean, 577 F.3d at 69 (citations omitted). The LNC argues that if such a right indeed exists, the FEC’s restriction could not withstand “closely drawn” scrutiny, or even rational basis scrutiny, because there is no potential for corruption or the appearance of corruption with the Burring-ton bequest. Before the bequest, the only known interaction between Burrington and the LNC occurred in 1998 when the former donated $25.00 to the Libertarian Party. Nothing indicates Burrington gave any money again during his life, and the LNC had no idea that Burrington planned to leave any money to the organization in his will. The 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. The Second Circuit in Dean did not view as frivolous the argument that there is a First Amendment right to receive campaign contributions. Neither should this Court. Of course, even if there is such a right, it is not absolute. Congress, through FECA, can seek to prevent corruption and the appearance of corruption, in part because “[l]arge contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor’s particular concerns.” McConnell, 540 U.S. at 119 n. 5, 124 S.Ct. 619 (citation omitted). And post-BCRA, national political committees continue to solicit contributions in exchange for access. (See Dkt. No. 24, ¶ 52). However, here there are no facts to indicate that the LNC solicited a large bequest from Burrington, provided any benefit or special access to Burrington while he was alive, or provides any special benefit or access to Burrington’s heirs or representatives now. On these facts, it appears that the anti-corruption interests that would be implicated by allowing the LNC to receive the entire bequest all at once may be minimal. Thus, the question of whether the FECA restriction on Burring-ton’s bequest to the LNC violates the LNC’s First Amendment right to receive campaign contributions is not insubstantial and can be certified to the en banc Circuit Court. See SpeechNow.org, 599 F.3d at 692 (“The Supreme Court has recognized only one interest sufficiently important to outweigh the First Amendment interests implicated by contributions for political speech: preventing corruption or the appearance of corruption.”) (citations omitted). CONCLUSION After a careful review of the parties’ positions, -the facts, and the current state of the law in this area, this Court concludes that although the question presented by the LNC for certification does not merit review by the en banc Court of Appeals, there is a valid, narrower constitutional question raised by the Burrington bequest that presents an as-applied challenge that should be certified. This Court does not relish requiring our Court of Appeals to sit en banc, but at the same time it has a duty under 2 U.S.C. § 437h to certify appropriate constitutional issues. Accordingly, this Court has narrowed the question as initially drafted and presents only the following question for the D.C. Circuit’s review: Does imposing annual contribution limits against the bequest of Raymond Groves Burrington violate the First Amendment rights of the Libertarian National Committee? Because this Court is certifying a question to the en banc Court of Appeals, but not the one drafted by the LNC, Plaintiffs Motion to Certify Facts and Questions (Dkt. No. 25) is GRANTED IN PART and DENIED IN PART. Based upon the same logic, Defendant’s Motion for Summary Judgment (Dkt. No. 29) is GRANTED IN PART and DENIED IN PART. The Court’s findings of fact, limited to those facts potentially relevant to the question as certified, are attached as an Appendix. An Order accompanies this Memorandum. APPENDIX FINDINGS OF FACT I. The Parties 1. Plaintiff Libertarian National Committee, Inc. (“LNC”) is the national committee of the Libertarian Party of the United States. (First Am. Compl. (“Compl.”) ¶ 4 (Dkt. No. 13)). 2. Defendant Federal Election Commission (“Commission” or “FEC”) is an independent agency of the United States with exclusive civil jurisdiction over the administration, interpretation, and civil enforcement of the Federal Election Campaign Act (“FECA” or “Act”), 2 U.S.C. §§ 431-57, and other statutes. The Commission is empowered to formulate policy with respect to FECA (id. § 437c(b)(l)); to make rules and regulations necessary to carry out the Act (id. §§ 437d(a)(8), 438(a)(8), 438(d)); to issue advisory opinions concerning the application of FECA and Commission regulations to any proposed transaction or activity (id. §§ 437d(a)(7), 437f); and to civilly enforce the Act and the Commission’s regulations (id. §§ 437c(b)(l), 437g). 3. LNC is a not-for-profit organization incorporated under the laws of the District of Columbia, which maintains its headquarters in Washington, DC. LNC has approximately 14,500 current dues paying members, in all 50 states and the District of Columbia. Approximately 278,-446 registered voters identify with the Libertarian Party in the 25 states in which voters can register as Libertarians. Throughout the Nation, 154 officeholders (including holders of nonpartisan offices), are affiliated with the Libertarian Party. (Redpath Decl., ¶ 2). 4. 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. (Redpath Deck, ¶ 3). 5. 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. (Redpath Deck, ¶ 4). 6. The LNC now considers itself the “number one ... minor party in the United States.” (LNC 30(b)(6) Dep. at 13:3-8, FEC Ex. 20). The LNC is on the ballot in more states, runs more candidates, and raises more funds than the other minor parties. (Id. at 13:9-12). The LNC is the third largest political party, behind the Democratic and Republican Parties, and the LNC is active in all 50 states, with more than 250,000 registered voters. (Frequently Asked Questions, Libertarian Party, http:// www.lp.org/faq (last visited May 1, 2012), FEC Ex. 73). 7. The Libertarian Party’s ability to influence elections is in some measure related to its ability to raise and expend money. (Ex. C, Response to Request for Admission No. 15). 8. In any one election cycle, the Libertarian Party typically fields “[njorth of 200” candidates for federal office. (LNC 30(b)(6) Dep. at 16:5-7, FEC Ex. 20). In November 2010, over 800 Libertarian candidates ran for federal, state, and local offices. (Our Hi