 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 21, 2016                  Decided April 26, 2016

                          No. 15-5120

               LAURA HOLMES AND PAUL JOST,
                      APPELLANTS

                                v.

               FEDERAL ELECTION COMMISSION,
                         APPELLEE


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:14-cv-01243)


     Allen Dickerson argued the cause for appellants. With him
on the briefs was Tyler Martinez.

    Erin Chlopak, Acting Assistant General Counsel, Federal
Election Commission, argued the cause for appellee. With her
on the brief were Daniel A. Petalas, Acting General Counsel,
Kevin Deeley, Acting Associate General Counsel, and Steve N.
Hajjar and Charles Kitcher, Attorneys.

    Before: GARLAND,* Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.

    *
      Chief Judge Garland was a member of the panel at the time the
case was argued but did not participate in this opinion.
                                    2

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

     RANDOLPH, Senior Circuit Judge: Anyone eligible to vote
in a Presidential election may bring an action in “the appropriate
district court” to determine whether “any provision” of the
Federal Election Campaign Act is unconstitutional. 52 U.S.C.
§ 30110. If the requirements of Article III of the Constitution
are satisfied, the district court must “immediately” “certify all
questions of constitutionality of this Act to the United States
court of appeals for the circuit involved . . . sitting en banc.” Id.

     Laura Holmes and her husband, Paul Jost, are eligible
voters residing in Florida. They sued the Federal Election
Commission claiming that a provision of the Act violated the
First and Fifth Amendments to the Constitution. The district
court, after a thorough recital of facts not in dispute,1 declined
to certify any questions and granted the Commission’s motion
for summary judgment on the ground that plaintiffs’ arguments
were frivolous because they were inconsistent with “settled
law.” Holmes v. Fed. Election Comm’n, 99 F. Supp. 3d 123,
124, 149 (D.D.C. 2015). The question on appeal is whether,
instead, the district court should have certified the constitutional
questions raised in the complaint to the en banc court of appeals.




     1
       The district court initially certified both of plaintiffs’ questions
to this court sitting en banc. Holmes v. Fed. Election Comm’n, No.
14-1243, 2014 WL 6190937, at *3-4 (D.D.C. Nov. 17, 2014). At the
suggestion of the Federal Election Commission, the court remanded
the case so that the district court could develop “the factual record
necessary for en banc review.” Holmes v. Fed. Election Comm’n, No.
14-5281 (D.C. Cir. 2014) (order granting remand).
                                   3

                                    I

    The Federal Election Campaign Act prohibits people from
making contributions “to any candidate” for “any election for
Federal office which, in the aggregate, exceed [$2,600].”2 52
U.S.C. § 30116(a)(1)(A). The contribution limit applies
“separately with respect to each election,” 52 U.S.C.
§ 30116(a)(6), as a result of which a person may contribute
$2,600 to a candidate for each “general, special, primary, or
runoff election” in which the candidate participates. 52 U.S.C.
§ 30101(1)(A). Plaintiffs believe that this “per-election”
provision violates the First and Fifth Amendments.

     In 2014, each plaintiff wanted to contribute $5,200 to a
Congressional candidate during the general election campaign.
Plaintiffs could not do so because that amount exceeded the
$2,600 per-election limit. Neither plaintiff contributed to his or
her candidate during the primary election campaign. Plaintiffs
explain that they are “interested principally in supporting the
ultimate nominee[s] from [their] party.”

     Plaintiffs sought a declaratory judgment that the Act’s per-
election limit is unconstitutional as applied to their
contributions, and an injunction forbidding the Commission
from enforcing that limit. They argued that § 30116(a)(6) of the
Act violates the First Amendment’s protection of free speech
because the per-election structure “serves no anti-corruption
purpose . . ..” They also claimed that § 30116(a)(6) violates the
Fifth Amendment’s guarantee of equal protection when “a


     2
      During the course of this litigation the contribution limits, which
are indexed for inflation, rose from $2,600 to $2,700. See Price Index
Adjustments for Contribution and Expenditure Limitations, 78 Fed.
Reg. 8530, 8532 (Feb. 6, 2013); 80 Fed. Reg. 5750, 5751 (Feb. 3,
2015).
                                    4

candidate who faces a primary challenge competes in the
general election against a candidate who ran unopposed or
virtually unopposed during the primary.”3

     The district court ruled “that no constitutional questions
warrant[ed] certification [under § 30110] because the plaintiffs’
claims involve questions of settled law.” Holmes, 99 F. Supp.
3d at 149. In addition to declining to certify plaintiffs’
constitutional issues to the en banc court of appeals, the district
court granted the Commission’s motion for summary judgment
on the merits and dismissed plaintiffs’ claims. Id.

     Plaintiffs appeal only the district court’s decision not to
certify their constitutional questions.

                                   II

    Under § 30110, district courts do not certify “frivolous”
constitutional questions to the en banc court of appeals. Cal.
Med. Ass’n v. Fed. Election Comm’n, 453 U.S. 182, 192 n.14
(1981). The role of the district court is similar to that of “a
single judge asked to seek convening of a three-judge court
under 28 U.S.C. § 2284 . . ..” Clark v. Valeo, 559 F.2d 642, 645

     3
        In the district court, but not in this court, the Commission
argued that the case was moot because the elections were over. The
district court decided – and we agree – that the case fits “the
established exception to mootness for disputes capable of repetition,
yet evading review.” Holmes, 99 F. Supp. 3d at 138 (quoting Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462
(2007)). Plaintiffs’ claims could not “be fully litigated before the
[elections concluded],” id. (quoting Moore v. Hosemann, 591 F.3d
741, 744 (5th Cir. 2009)), and there was “a reasonable expectation [the
plaintiffs] will again be subject to [the Act’s] per-election contribution
limit” because they had “aver[red] that they intend to make such
contributions in the future.” Id. at 139.
                                 5

n.2 (D.C. Cir. 1977) (per curiam), aff’d sub nom. Clark v.
Kimmitt, 431 U.S. 950 (1977). The single judge in such a case
may refuse to convene a three-judge court if the plaintiff’s
claims are “wholly insubstantial,” “obviously frivolous,” and
“obviously without merit.” Shapiro v. McManus, 136 S. Ct.
450, 456 (2015) (quoting Goosby v. Osser, 409 U.S. 512, 518
(1973)). These phrases, the Court wrote in Shapiro, set a “low
bar.” Id.; see, e.g., Indep. Inst. v. Fed. Election Comm’n, No.
14-5249, 2016 WL 790894 (D.C. Cir. Mar. 1, 2016).4

     This brings us to plaintiffs’ contention that § 30116(a)(6)
violates the First Amendment. Their argument begins with the
proposition that the “right to participate in democracy through
political contributions is protected by the First Amendment . . ..”
McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1441
(2014) (plurality opinion). This “constitutional guarantee has its
fullest and most urgent application precisely to the conduct of
campaigns for political office.” Monitor Patriot Co. v. Roy, 401
U.S. 265, 272 (1971). To protect this First Amendment right,
limitations on campaign contributions are unconstitutional
unless they target “quid pro quo corruption or its appearance”;
quid pro quo in this context “captures the notion of a direct
exchange of an official act for money.” 134 S. Ct. at 1441
(internal quotation marks omitted). The linchpin of plaintiffs’
argument is that contributing $5,200 to a candidate in a general
election in one lump sum cannot be considered corrupting
because Congress determined that contributing $5,200 to a
candidate in two installments ($2,600 for a primary election and


    4
      In Judd v. Fed. Election Comm’n, 304 F. App’x 874, 875 (D.C.
Cir. 2008) (per curiam), we also analogized the district court’s role
under § 30110 to that of a district court in dismissing in forma
pauperis claims that are “frivolous or malicious” within the meaning
of 28 U.S.C. § 1915(e)(2)(B)(i). See Neitzke v. Williams, 490 U.S.
319, 324-25 (1989).
                                  6

$2,600 for a general election) is not corrupting. In support,
plaintiffs invoke the McCutcheon plurality’s statement that
“Congress’s selection of a $5,200 base limit indicates its belief
that contributions of that amount or less do not create a
cognizable risk of corruption.” Id. at 1452; see also id. at 1442,
1448, 1451.        The district court may be correct that
McCutcheon’s repeated references to a “$5,200” contribution
limit were just “shorthand . . . dicta” to describe the combined
limit “for the primary and general elections.” Holmes, 99 F.
Supp. 3d at 145. But then again, it may be that plaintiffs are
correct in treating those references as support for their position.
We do not take sides on the merits of the dispute. It is enough
to say that plaintiffs’ argument is not “obviously frivolous” or
“obviously without merit.” Shapiro, 136 S. Ct. at 456.

     The district court nevertheless declined to certify the First
Amendment issue on the ground that plaintiffs’ argument
contradicted “settled law.” Holmes, 99 F. Supp. 3d at 146, 149.
This standard derives from a footnote in Cal. Med., 453 U.S. at
192 n.14, a case arising under the predecessor to § 30110. But
it is unclear whether the Supreme Court was referring to
“settled” questions of constitutional law or statutory
interpretation. Earlier in the footnote the Court spoke of cases
in which “the resolution of unsettled questions of statutory
interpretation may remove the need for constitutional
adjudication.” Id. Toward the end of the footnote, the Court
mentioned that the parties had not suggested that the statute at
issue could be interpreted to avoid the constitutional issue, to
which the Court added that the issues in the case were neither
“insubstantial nor settled.” Id.5


     5
      Dicta in Wagner v. Fed. Election Comm’n, 717 F.3d 1007, 1009
(D.C. Cir. 2013) (per curiam), stated that “the district court must
determine whether the constitutional challenges are frivolous or
involve settled legal questions,” citing inter alia the footnote in the
                                    7

     The Court’s footnote raises several problems. For instance,
which court or courts must have “settled” the constitutional
issue? Suppose a panel of the court of appeals has rendered a
decision contrary to plaintiffs’ claims. Would that constitute
settled law? The district courts in the circuit would be bound to
follow the appellate panel’s decision, as would other three-judge
panels in the circuit. See LaShawn A. v. Barry, 87 F.3d 1389,
1395 (D.C. Cir. 1996) (en banc). Yet district court certification
under § 30110 is to the en banc court of appeals, which has the
authority to overrule not only a panel’s decision but also a
previous en banc decision. See id.

     Suppose instead that “settled law” refers only to decisions
of the Supreme Court. See, e.g., Cal. Water Serv. Co. v. City of
Redding, 304 U.S. 252, 255 (1938) (per curiam) (“The lack of
substantiality in a federal question may appear . . . because its
unsoundness so clearly results from the previous decisions of
this Court as to foreclose the subject.” (italics added)). This
would make some sense, because the en banc court must adhere
to a Supreme Court decision that is directly on point even if


Supreme Court’s Cal. Med. opinion. The statement was dicta because
Wagner presented no such issue. The plaintiffs had disclaimed
jurisdiction under § 30110 and instead “invoke[d] only the district
court’s federal question jurisdiction” under 28 U.S.C. § 1331. Id. Our
court held that § 30110’s jurisdiction was exclusive and therefore
remanded the case. See id. at 1015-17. After the district court
complied with § 30110, we issued a detailed and lengthy en banc
opinion rejecting plaintiffs’ claims on the merits. See Wagner v. Fed.
Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015) (en banc), cert. denied
sub nom. Miller v. Fed. Election Comm’n, 136 S. Ct. 895 (2016). The
nature and length of our en banc opinion shows that the issues in
Wagner were not “settled law.” Neither of the two questions the
district court certified dealt with “settled law,” and, in contrast to the
present case, the Federal Election Commission in Wagner did not
argue otherwise.
                                 8

there are persuasive arguments against it. See Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). From this, one might conclude that under § 30110, a
district court should decline to certify a question if the Supreme
Court precedent is so “settled” that the plaintiff would surely
lose in the en banc court. See, e.g., Khachaturian v. Fed.
Election Comm’n, 980 F.2d 330 (5th Cir. 1992) (en banc) (per
curiam); Goland v. United States, 903 F.2d 1247, 1257-58 (9th
Cir. 1990).

     But what may appear to be “settled” Supreme Court
constitutional law sometimes turns out to be otherwise.6
McCutcheon and Citizens United v. Fed. Election Comm’n, 558
U.S. 310 (2010), may be seen as examples of the Court
disagreeing with “settled law” in the context of federal
campaign finance law. The dissenters in both cases certainly
thought so. See McCutcheon, 134 S. Ct. at 1465 (Breyer, J.,
dissenting) (“Today a majority of the Court overrules [the
Court’s previous] holding.”); Citizens United, 558 U.S. at 394
(Stevens, J., concurring in part and dissenting in part) (“The
majority’s approach to corporate electioneering marks a
dramatic break from our past.”). These cases, and others,
illustrate an important point not captured in the “settled law”
idea: it is entirely possible to mount a non-frivolous argument


    6
        See, e.g., GEORGE COSTELLO, CONG. RESEARCH SERV.,
RL33172, THE SUPREME COURT’S OVERRULING OF CONSTITUTIONAL
PRECEDENT: AN OVERVIEW (2005); Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406-08 (1932) (Brandeis, J., dissenting) (“[I]n
cases involving the Federal Constitution, where correction through
legislative action is practically impossible, this Court has often
overruled its earlier decisions. The Court bows to the lessons of
experience and the force of better reasoning, recognizing that the
process of trial and error, so fruitful in the physical sciences, is
appropriate also in the judicial function.”)
                               9

against what might be considered “settled” Supreme Court
constitutional law. The Federal Rules of Civil Procedure
specifically recognize such a prospect. Under Rule 11(b)(2),
attorneys may not be sanctioned for presenting a “nonfrivolous
argument for extending, modifying, or reversing existing
law . . ..” FED. R. CIV. P. 11(b)(2); see also Burns v. George
Basilikas Tr., 599 F.3d 673, 677 (D.C. Cir. 2010) (quoting FED.
R. CIV. P. 11 advisory committee’s notes to 1993 amendments).

     We therefore do not think a district court may decline to
certify a constitutional question simply because the plaintiff is
arguing against Supreme Court precedent so long as the plaintiff
mounts a non-frivolous argument in favor of overturning that
precedent. That the plaintiff will be fighting a losing battle in
the lower courts does not necessarily make the question
“obviously frivolous,” or “wholly insubstantial,” or “obviously
without merit.” Shapiro, 136 S. Ct. at 456. The plaintiff has to
raise the question to ensure that it is preserved for Supreme
Court review. See Yee v. City of Escondido, 503 U.S. 519, 533
(1992). And certifying the question fulfills § 30110’s evident
purpose of accelerating potential Supreme Court review. See
Cal. Med., 453 U.S. at 191; see also Harrison v. PPG Indus.,
Inc., 446 U.S. 578, 593 (1980).

     Given our statement in Wagner, see note 5 supra, and the
uncertain meaning of the footnote in Cal. Med., we cannot fault
the district court for invoking “settled law” in declining to
certify plaintiffs’ First Amendment question under § 30110.
Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), supposedly
did the settling. Although Buckley did not specifically “address
the constitutionality of setting contribution limits on a per-
election basis,” the district court found that the Supreme Court
“contemplated and approved” the Act’s per-election contribution
limits. Holmes, 99 F. Supp. 3d at 144.
                                   10

     We do not share this view of Buckley. In more than 200
pages of the majority opinion and dissents, the Justices writing
in Buckley mentioned the “per-election” structure only a handful
of times, and each time merely to “summarize[]” or define the
contribution limits provision in the Act. 424 U.S. at 7; see, e.g.,
id. at 24. In nearly 800 pages of briefs, this structure is
mentioned only for that same limited purpose.7 The absence of
any analysis of the First Amendment question plaintiffs raise in
this case is not surprising. Of the 28 constitutional questions the
district court certified in Buckley, none touched upon the
subject. See Buckley v. Valeo, 519 F.2d 821, 898-901 (D.C. Cir.
1975) (en banc) (per curiam), aff’d in part, rev’d in part, 424
U.S. 1, and modified, 532 F.2d 187 (D.C. Cir. 1976).8

     Even if the Supreme Court had “contemplated and
approved” the per-election contribution limit, as the district
court thought, that is not the proper standard under § 30110.
Plaintiffs’ First Amendment question need not be certified if
their arguments “fail[] to raise a substantial federal question for
jurisdictional purposes.” Shapiro, 136 S. Ct. at 455. A few


     7
        See Buckley v. Valeo, 424, U.S. 1 (1976) (Nos. 75-436 & -437),
Brief of the Appellants, 1975 WL 173792; Brief for the Attorney
General as Appellee, 1975 WL 412237; Reply Brief of the Appellants,
1975 WL 171458; see, e.g., Brief for the Attorney General and the
Federal Election Commission, 1975 WL 171459, at *6 (“Individuals
are . . . restricted to $1,000 per election (or primary) to any particular
candidate.”); Brief for Appellees Center for Public Financing of
Elections, 1975 WL 171457, at *113 (“The [Act] permit[s] individuals
to contribute $1,000 per candidate per election . . ..”).
     8
       The closest is Question 3, which asked whether the “statutory
limitation” on “the amounts that individuals or organizations may
contribute or expend in connection with elections for federal office”
violates the First Amendment. Id. at 898. But nowhere does this
question even mention that the limit applies on a per-election basis.
                                11

scattered references to the per-election structure in Buckley with
no discussion of its constitutionality do not reach this threshold.
Take, for instance, the plurality opinion in McCutcheon holding
the Act’s aggregate contribution limit unconstitutional under the
First Amendment. 134 S. Ct. at 1442. The plurality determined
that Buckley did not control because the aggregate limit “had not
been separately addressed at length by the parties,” and because
the Buckley opinion had “spent a total of three sentences
analyzing that limit.” Id. at 1446. Whatever superficial analysis
the aggregate limit received in Buckley, the per-election
structure received even less. The constitutionality of the Act’s
per-election structure is by no account “settled law.”

     As to plaintiffs’ Fifth Amendment claim, they argue that
because the candidates they supported faced primary opposition
and then competed in general elections against candidates who
had faced no primary opposition, the Act “artificially favors
some contributors . . . over others.” This effect, they say, results
from Commission regulations permitting candidates to transfer
unused primary contributions to general election campaigns if
those contributions were “made before the primary election.” 11
C.F.R. § 110.1(b)(5)(ii)(B)(1); see also 11 C.F.R. § 110.3(c)(3).
Therefore, according to plaintiffs, “a contributor who gives
$5,200 in earmarked contributions [($2,600 for the primary
election, $2,600 for the general election)] the day before a
primary election may functionally give $5,200 for general
election purposes.” They believe that this violates the Fifth
Amendment because it creates a contribution “asymmetry.”
That is, plaintiffs may only contribute $2,600 to a candidate in
a general election while others may functionally contribute
$5,200 to a competing candidate who did not have to spend
anything in a primary.

    The “asymmetry” plaintiffs describe is a function of the
regulations, not the Act. Section 30110 requires the district
                                   12

court to “certify all questions of constitutionality of this
Act . . ..” 52 U.S.C. § 30110 (italics added). Plaintiffs’ Fifth
Amendment claim is so clearly a challenge to regulations, and
therefore outside the scope of § 30110, that it “fail[s] to raise a
substantial federal question for jurisdictional purposes.”
Shapiro, 136 S. Ct. at 455.9

    Plaintiffs frame their Fifth Amendment contention as a
“challenge [to] the . . . timing of [the Act’s] contribution limits.”
Their complaint and their briefs on appeal do focus on the
timing of contributions and on candidates’ ability to transfer
campaign funds. But the Act is silent on both subjects. The Act
merely sets contributions limits and applies those limits on a
per-election basis. See 52 U.S.C. § 30116(a)(1)(A), (a)(6).
Plaintiffs’ objections are therefore a consequence of the
Commission’s regulations.

     Plaintiffs try to tie the regulations to the Act by claiming
that the Commission “cannot write a regulation contrary to
statute.” This misses the point that a regulation may be
unconstitutional even if the statute it implements is not. The
Commission, like other administrative agencies, has leeway in
promulgating regulations to enforce statutory provisions. There
may be many different ways for an agency to do this. That one
such implementing regulation may be unconstitutional does not
render the statute itself unconstitutional. See Am. Fed’n of
Labor & Cong. of Indus. Orgs. v. Fed. Election Comm’n, 333
F.3d 168, 179 (D.C. Cir. 2003). Although the district court
declined to certify the Fifth Amendment issue on the ground that
plaintiffs’ supporting arguments contradicted settled law, we


     9
       Complaints against Commission regulations follow the standard
procedure of a filing in the district court and, after a decision on the
merits or a dismissal, appeal to the court of appeals. See, e.g., Emily’s
List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009).
                                   13

reach the same result for a different reason – namely, that the
issue plaintiffs raise about the Fifth Amendment is a result of
regulations, not the Act.

                                   III

     The district court’s judgment declining to certify plaintiffs’
Fifth Amendment question is affirmed.10 The district court’s
decision not to certify plaintiffs’ First Amendment question and
to grant summary judgment to the Commission is reversed and
the case is remanded for the district court to certify that question
to the court of appeals en banc.

                                                           So ordered.




     10
        We do not reach the question whether the district court
properly granted summary judgment for the Commission on plaintiffs’
Fifth Amendment claim. The only Fifth Amendment issue plaintiffs
presented to us on appeal was, in their words: “Whether the District
Court erred in declining to certify pursuant to 52 U.S.C. § 30110, as
involving ‘questions of settled law,’” the constitutional validity of the
statute under the Fifth Amendment.
