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In May 2019, Trump-appointed D.C. Circuit Judge Gregory Katsas dissented from the en banc ruling and sought to exempt the sizeable bequest of a deceased donor from federal campaign finance laws. A 10-judge en banc of the D.C. Circuit decided that federal campaign contribution limits as applied to a deceased person’s bequest do not infringe on the Libertarian National Committee’s First Amendment interests. Katsas and two other Republican appointed judges argued against the ruling of the D.C. Circuit. The case is Libertarian National Committee v. Federal Election Commission.

In 2015, the Libertarian National Committee (LNC), a national committee of the Libertarian Party, received a bequest from a longtime donor who had passed away. The bequest was in the amount of $235,575.20. That year, federal election law capped contributions by a person (including estates) to political party committees at $33,400.00. National party committees could not accept contributions above that amount, meaning that LNC could not accept the full bequest for its general funds. In 2014, Congress amended federal election law to allow donors to contribute up to three times the $33,400.00 cap if the donations were put into three separate segregated party committee accounts and were only used for presidential nominating conventions, party headquarter buildings and election recounts. Under that amendment, LNC could accept $33,400 into its general funds and up to $100,200 into each of its three segregated accounts.

The LNC did not like that option and objected to the restrictions imposed on the bequest. In 2016, LNC challenged the validity of the law, asserting that the contribution limits against the bequest are a violation of its First Amendment rights because it imposes burdens on its free speech. LNC requested certification from the district court and then an en banc hearing to the U.S. Court of Appeals for the D.C. Circuit.

The en banc of the D.C. Circuit concluded that imposing federal campaign contribution limits on the bequest does not violate LNC’s First Amendment rights. The U.S. Supreme Court has repeatedly recognized the government’s interest in imposing contribution limits to combat the appearance of or actual quid pro quo corruption. That risk does not disappear merely because the donation was made after the donor’s death.

Judge Katsas disagreed. He explained that the contribution limits are unconstitutional as applied to this bequest as it came without LNC’s prior knowledge, without any strings attached and as LNC provided nothing of value in exchange for the bequest. The en banc made clear that although death terminates the ability to benefit personally from quid pro quo, the donor’s surviving friends and family remain all too capable of accepting political favors that the deceased may have pre-arranged for their benefit.