                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1455


STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY           DEMOCRATS,
(“Stop Reid”); TEA PARTY LEADERSHIP FUND;              ALEXANDRIA
REPUBLICAN CITY COMMITTEE,

                 Plaintiffs - Appellants,

AMERICAN FUTURE PAC,

                 Intervenor/Plaintiff – Appellant,

           and

NIGER INNIS; NIGER INNIS FOR CONGRESS,

                 Plaintiffs,

           v.

FEDERAL ELECTION COMMISSION,

                 Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:14-cv-00397-AJT-IDD)


Argued:   December 8, 2015               Decided:   February 23, 2016


Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth
K. DILLON, United States District Judge for the Western District
of Virginia, sitting by designation.
Affirmed in part; vacated and remanded in part with instructions
by published opinion. Chief Judge Traxler wrote the opinion, in
which Judge Shedd and Judge Dillon joined.


ARGUED:    Michael   T.    Morley,    COOLIDGE-REAGAN  FOUNDATION,
Washington, D.C., for Appellants.      Kevin Paul Hancock, FEDERAL
ELECTION COMMISSION, Washington, D.C., for Appellee.     ON BRIEF:
Dan Backer, DB CAPITOL STRATEGIES, Alexandria, Virginia, for
Appellants   Stop   Reckless    Economic   Instability  Caused  by
Democrats, Tea Party Leadership Fund, and Alexandria Republican
City Committee; Jerad Najvar, NAJVAR LAW FIRM, Houston, Texas,
for   Intervenor-Appellant    American   Future   PAC.    Lisa  J.
Stevenson, Deputy General Counsel-Law, Kevin Deeley, Acting
Associate General Counsel, Harry J. Summers, Assistant General
Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for
Appellee.




                                2
TRAXLER, Chief Judge:

     Four      political       committees           –    “Stop        Reckless       Economic

Instability     Caused       By    Democrats”           (“Stop    PAC”),       “Tea       Party

Leadership     Fund”     (“the      Fund”),         “Alexandria         Republican        City

Committee”     (“ARCC”),          and   “American         Future        PAC”       (“American

Future”) (collectively, “Appellants”) – appeal a district court

order granting summary judgment against them in their claims

challenging the constitutionality of certain contribution limits

established     by     the    Federal       Election          Campaign       Act    of    1971

(“FECA”), see 52 U.S.C. §§ 30101–30146.                       We conclude that two of

the three claims became moot before the district court granted

summary judgment, and we therefore vacate the merits judgment on

those counts and remand to the district court with instructions

to   dismiss     them    for       lack     of      subject-matter           jurisdiction.

Regarding the third claim, we affirm.

                                            I.

     FECA      regulates       many       different           types     of     donors      and

recipients.     See 52 U.S.C. §§ 30116, 30118-19, 30121 (formerly 2

U.S.C.    §§ 441a,     441b-441c,         441e).         To    understand      the       issues

before us in this appeal, it is necessary to understand some of

FECA’s basic concepts and limits.

     To    begin,    FECA    defines       a       “political     committee”         as   “any

committee, club, association, or other group of persons” that,

during    a    calendar       year,        received           contributions         or    made

                                               3
expenditures         in       excess        of    $1,000.           52    U.S.C.         §       30101(4)(A)

(formerly       2    U.S.C.           § 431(4)(A));           see        The    Real         Truth       About

Abortion, Inc. v. FEC, 681 F.3d 544, 555 (4th Cir. 2012).                                                    FECA

defines        “expenditures”               and     “contributions”                 as       encompassing

spending       or    fundraising             “for      the    purpose          of    influencing              any

election       for       Federal          office.”           52    U.S.C.       §     30101(8)(A)(i),

(9)(A)(i)       (formerly           2      U.S.C.    §     431(8)(A)(i),             (9)(A)(i));              see

also Buckley v. Valeo, 424 U.S. 1, 79 (1976) (limiting FECA’s

political-committee                 requirements             to     organizations                 that        are

controlled          by    a     candidate         or       whose     “major          purpose”           is    to

nominate or elect a candidate); The Real Truth About Abortion,

Inc., 681 F.3d at 555.                        A group that has met the political-

committee       criteria            must      register        with        the       Federal           Election

Commission (“FEC”).                 See 52 U.S.C. § 30103(a) (formerly 2 U.S.C.

§ 433(a)).

      There are different types of political committees.                                                     Some

are   associated           with       a    particular        candidate          or       entity.             See,

e.g.,     52     U.S.C.         §         30101(14)        (providing           that         a    “national

committee” is a political committee responsible for the day-to-

day     operation          of     a        national        political           party);           52     U.S.C.

§ 30101(15) (providing that a “State committee” is a political

committee that is responsible for the day-to-day operation of a

political party at the state level); 52 U.S.C. § 30102(e)(1)

(providing          that      each         candidate         must        designate           a    political

                                                       4
committee    to     serve   as       the    candidate’s    “principal       campaign

committee”).       And others are not associated with any candidate

or entity (“non-connected political committees”).

      FECA   sets      different      contribution       limits     for   different

classes of donors and recipients.                A contribution made by a non-

connected    political      committee       to    an   individual    candidate      is

governed by the restriction limiting contributions by “persons”

generally.        52   U.S.C.    §    30116(a)(1)(A).        “Persons”       include

“individual[s],        partnership[s],           committee[s],     association[s],

corporation[s],         labor         organization[s],        or      any      other

organization[s] or group[s]” other than the federal government.

52 U.S.C. § 30101(11).           In 2014, the inflation-adjusted limit

for contributions by “persons” was $2,600 per election, with

primaries and general elections counting as separate elections. 1

However, non-connected political committees, unlike other types

of   persons,     qualified     for    an    elevated    per-election       limit   of

$5,000 on contributions to individual candidates if and when

      152 U.S.C. § 30116(a)(1)(A) sets the per-election limit at
$2,000. However, that amount had been adjusted for inflation to
$2,600 by the time the parties filed their memoranda in the
district court regarding summary judgment, see Price Index
Adjustments for Contribution and Expenditure Limitations and
Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8,530-02,
8,532 (Feb. 6, 2013), and it was adjusted on February 3, 2015,
to $2,700, see Price Index Adjustments for Contribution and
Expenditure   Limitations   and  Lobbyist   Bundling  Disclosure
Threshold, 80 Fed. Reg. 5,750-02, 5,752 (Feb. 3, 2015).      See
also 52 U.S.C. § 30116(c) (providing for periodic inflation
adjustment of certain limits).


                                            5
they satisfied three criteria:                     They must have “been registered

[with the FEC] for a period of not less than 6 months” (the

“waiting      period”),      “received        contributions      from       more    than    50

persons,” and “made contributions to 5 or more candidates for

Federal    office.”         52    U.S.C.       §    30116(a)(4);     see     52    U.S.C.    §

30116(a)(2)(A).           A political committee satisfying these criteria

is     referred      to    as    a     “multicandidate         political          committee”

(“MPC”).      Id.

       FECA also limits contributions that persons and political

committees      can    make      to    political      party    committees.           See    52

U.S.C. § 30116(a)(1)(B), (D), (a)(2)(B)-(C).                           With regard to

contributions to these committees, the limits decrease when the

non-connected political committee becomes an MPC.                                 When this

case    was    commenced        in    April        2014,   persons    (including        non-

connected political committees that did not qualify as MPCs)

could contribute $32,400 per year to national party committees

and $10,000 combined to state political party committees and

their local affiliates, while the corresponding limits for MPCs

were $15,000 and $5,000.                 See id.; 11 C.F.R. § 110.3(a)(1);

Price     Index       Adjustments        for        Contribution      and     Expenditure

Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed.

Reg. 8,530-02, 8,532 (Feb. 6, 2013).

       On December 16, 2014, Congress amended FECA to create a new

category      of    limits.          Under   the     amended   law,     national       party

                                               6
committees can create up to three segregated accounts to fund

their presidential nominating convention, building headquarters,

and     election-related        legal   expenses.       See      Consolidated       and

Further Continuing Appropriations Act, 2015, Pub. L. 113-235,

Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified

as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)).

The   annual     limits    for    contributions      made   to    such   segregated

accounts are three times the limits on other contributions to

national party committees.          See id.

                                         II.

      The plaintiffs in this suit, Stop PAC, the Fund, and ARCC,

filed their initial complaint against the FEC on April 14, 2014,

and filed an amended complaint on July 7, 2014 (the “Amended

Complaint”).      The Amended Complaint alleged the following facts

regarding the parties.

      Plaintiff Stop PAC is a non-connected political committee

that registered with the FEC on March 11, 2014.                   As of April 14,

2014,     Stop    PAC     had    over   150    contributors        and   had    made

contributions      to   five     candidates    for   federal     office.       On   or

around April 4, 2014, Stop PAC contributed the maximum $2,600 to

candidate Niger Innis in the Nevada Primary for the Republican




                                          7
nomination for a seat in the U.S. House of Representatives. 2                         On

or around June 16, 2014, Stop PAC contributed the same amount to

candidate Dan Sullivan in the Alaska Primary for the Republican

nomination for the U.S. Senate.               Stop PAC wished to contribute

more to each candidate — as it could have had it been an MPC —

but its     waiting    period     would   not    expire   until    September      11,

2014, after the primaries were held.

      Stop PAC also contributed $2,600 to Congressman Joe Heck,

Republican nominee for Congress from Nevada’s 3rd Congressional

District, in connection with his 2014 general election.                          Stop

PAC wished to contribute more to Heck immediately, but it was

prohibited from doing so until its waiting period expired.

      The Fund is a non-connected MPC that registered with the

FEC in 2012, has over 100,000 contributors, and has contributed

to dozens of federal candidates.                Because the Fund was an MPC,

the   maximum   amounts    it     could   contribute      annually    to    a    state

political    party    committee     and   its    local    affiliates       and   to   a

national    party     committee    each   year    were    $5,000     and    $15,000,

respectively.        See 52 U.S.C. § 30116(a)(2)(B)-(C); 11 C.F.R. §

110.3(a)(1).




      2Innis and his campaign committee were plaintiffs in the
original complaint, but the district court granted a motion to
voluntarily dismiss them.


                                          8
       Plaintiff      ARCC      is     a    local       political     party        committee

affiliated with the Virginia Republican State Committee, which

is a state political party committee.                        The Fund contributed the

statutory maximum of $5,000 to ARCC on April 4, 2014.                               For the

year 2014, the Fund wished to contribute an additional $5,000 to

ARCC and $32,400 to the National Republican Senatorial Committee

(“NRSC”), both of which FECA would have allowed had the Fund not

yet    become    an     MPC.      See      52       U.S.C.   §   30116(a)(1)(B),        (D),

(a)(2)(B)-(C); see 78 Fed. Reg. at 8,532.

       The Amended Complaint contains three claims, each of which

seeks    declaratory       and       injunctive        relief.       Counts    I     and   II

pertain    to    FECA’s      $2,600-per-election             limit    on    contributions

made to individual candidates by political committees that have

not yet become MPCs.             See 52 U.S.C. § 30116(a)(1)(A).                   In Count

I, Stop PAC alleges that that limit, as applied to Stop PAC,

violates the equal protection component of the Fifth Amendment’s

Due Process Clause because FECA applies a higher limit to MPCs

than it does to political committees that have not completed the

waiting period but have satisfied the other MPC criteria.                                  In

Count II, Stop PAC alleges that the waiting period, as applied

to Stop PAC, violates its First Amendment rights to free speech

and free association.             In Count III, ARCC and the Fund allege

that    FECA’s    annual       limits      on   contributions        made     by    MPCs   to

national        party      committees               ($15,000),       see      52      U.S.C.

                                                9
§ 30116(a)(2)(B), and to state party committees ($5,000), see 52

U.S.C. § 30116(a)(2)(C), violate the equal protection component

of the Fifth Amendment’s Due Process Clause insofar as political

committees that have not yet completed the waiting period but

that    have      satisfied    the       other   MPC    criteria     enjoy   the   higher

limits of $32,400 and $10,000, respectively.

       On August 27, 2014, the plaintiffs moved to join American

Future in the suit as an intervening plaintiff concerning Counts

I     and   II.       American       Future       is   a     non-connected      political

committee that registered with the FEC on August 11, 2014.                            As

of August 22, 2014, American Future had raised $5,473 from 54

contributors.         It contributed $2,600 to candidate Tom Cotton’s

general election campaign in Arkansas for the U.S. Senate, and

$100 each to four other candidates.                         American Future wished to

contribute $2,000 more to Cotton for the 2014 general election,

but    FECA    prevented      it    from    doing      so    since   American   Future’s

waiting period was not due to expire before the November 2014

election.         American Future also wished to contribute more than

$2,600 to Cotton immediately but could not do so until he filed

paperwork      concerning          the    2016    primary       election.       Finally,

American Future desired to contribute more than $2,600 as soon

as possible to other candidates for their 2016 primaries.                             On

October 6, 2014, the district court entered an order allowing



                                             10
American Future to intervene pursuant to Federal Rule 24.                            See

Fed. R. Civ. P. 24.

       On September 19, 2014, before the district court ruled on

the plaintiffs’ joinder motion, the parties filed cross-motions

for summary judgment.            In support of its motion, the FEC, in

addition to arguing that none of the challenged limitations were

unconstitutional,        asserted      that     the     district      court    lacked

subject-matter jurisdiction over Stop PAC’s claims (Counts I and

II).    In particular, it argued that Stop PAC’s claims should be

dismissed for lack of standing since it caused its own injury by

not registering as early as November 2013, in time to become an

MPC before the three elections concerning which it wished to

make additional contributions.                The FEC also argued that Stop

PAC’s claims were moot because it became an MPC on September 11,

2014,   and   was   thus    no   longer      subject    to   the    limit     that    it

challenged, and never would be again.

       In   response,      the   plaintiffs       contended        that     Stop     PAC

established    standing.         In   that    regard,    they      objected    to    the

FEC’s   attempt     to   “effectively     blame       Stop   PAC    for   failing     to

organize itself more than six months before the primaries,” when

in fact “[m]ost ordinary people are not especially interested in

becoming involved in the political process until shortly before

an election.”       Memo. in Opp’n to FEC’s Mot. for Summ. J. 3.                      As

for the FEC’s suggestion that Stop PAC’s claims were moot, the

                                        11
plaintiffs invoked the exception for claims that are “capable of

repetition, yet evading review.”                    Southern Pac. Term. Co. v.

ICC,     219   U.S.     498,     515    (1911).          Although     the      plaintiffs

acknowledged that this exception is generally applied only when

the plaintiff itself faces a risk that it will be subject to the

same challenged provisions in the future, the plaintiffs argued

that the same-plaintiff requirement need not be met in election-

related cases.

       On   February       24,   2015,     as      the   parties      waited     for    the

district court to rule on their summary judgment motions, the

FEC filed a notice with the district court raising additional

arguments regarding mootness.                  In the notice, the FEC informed

the district court that on February 11, 2015, American Future

had become an MPC.          As it had argued regarding Stop PAC, the FEC

contended      that     American       Future,      as   an   MPC,     was   no    longer

affected by the limit it was challenging and never would be

again.      The FEC’s filing also informed the court of the December

16,    2014    change      in    the    law     allowing      contributions       to    the

specified segregated accounts of national parties of three times

the limits on other contributions to national party committees.

The FEC maintained that that change mooted the Fund’s challenge

to    the   limits    on    an    MPC’s       contributions      to    national        party

committees.



                                              12
       The district court subsequently granted summary judgment to

the FEC on all claims.                 See Stop Reckless Econ. Instability

Caused By Democrats v. FEC, 93 F. Supp. 3d 466 (E.D. Va. 2015)

(“Stop”).       Regarding       each    of     the    three     claims,     the    district

court assumed that the FEC’s arguments regarding standing and

mootness failed, see id. at 472-73, and ruled that the FEC was

entitled to summary judgment on the merits, see id. at 473-77.

As    for    Count    II,   alleging     a     First      Amendment       violation,     the

district      court    concluded       that    “Stop      PAC    and   American      Future

cannot show that they have suffered a cognizable constitutional

injury as a result of the waiting period, even if they would

have made a higher contribution, had they been permitted to do

so.”    Id. at 474 (citing Buckley v. Valeo, 424 U.S. 1 (1976),

and    California      Med.     Ass’n     v.       FEC,    453     U.S.    182     (1981)).

Regarding      Counts       I   and      III,        alleging      violation       of    the

plaintiffs’ equal protection rights under the Fifth Amendment,

the district court concluded that Stop PAC and the Fund were not

similarly situated to each other, and thus that “FECA does not

improperly      discriminate      among        such    committees”        and    “does   not

violate the plaintiffs’ rights under the Fifth Amendment.”                               Id.

at    477.      The    district        court       alternatively       ruled      that   any

discrimination        was    justified        under       either    rational-basis       or

intermediate scrutiny.          See id.



                                              13
                                       III.

       With regard to each of the three counts, Appellants argue

that    the   district      court   erred    in   granting    summary     judgment

against them.         In response, the FEC maintains that the district

court   should      never    have   addressed     the   merits    of   the     claims

because it lacked subject-matter jurisdiction over them.                          See

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time

that    it    lacks    subject-matter        jurisdiction,       the   court     must

dismiss the action.”).           Alternatively, the FEC argues that the

district court’s decision regarding the merits was correct.

       “Without jurisdiction the court cannot proceed at all in

any cause.         Jurisdiction is power to declare the law, and when

it ceases to exist, the only function remaining to the court is

that of announcing the fact and dismissing the cause.”                    Ex parte

McCardle, 74 U.S. 506, 514 (1868).                  Accordingly, the Supreme

Court has stated in no uncertain terms that federal courts are

not    free   to    simply    assume   that     they    possess    subject-matter

jurisdiction and then proceed to decide the merits of the issues

before them when their jurisdiction remains in doubt.                    See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

Rather, federal courts must determine whether they have subject-

matter jurisdiction over a claim before proceeding to address

its merits.         See id.     The district court erred in failing to

follow this course in this case.

                                        14
      We therefore begin our analysis by addressing the FEC’s

contentions that the district court did not have subject-matter

jurisdiction when it granted summary judgment to the FEC.

      Article      III     gives    federal       courts    jurisdiction        only     over

“[c]ases” and “[c]ontroversies.”                  U.S. Const. art. III, § 2, cl.

1.    “One essential aspect of this requirement is that any person

invoking the power of a federal court must demonstrate standing

to do so,” which “requires the litigant to prove that he has

suffered a concrete and particularized injury that is fairly

traceable     to     the    challenged       conduct,       and   is     likely     to    be

redressed by a favorable judicial decision.”                           Hollingsworth v.

Perry, 133 S. Ct. 2652, 2661 (2013).

      “To qualify as a case fit for federal-court adjudication,

an actual controversy must be extant at all stages of review,

not merely at the time the complaint is filed.”                           Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal

quotation marks omitted).             Accordingly, a case is moot “when the

issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.”                       Chafin v. Chafin,

133   S.   Ct.     1017,    1023    (2013)    (some      internal      quotation       marks

omitted).

      A    case    that     would   otherwise       be     moot   is    not    so   if    the

underlying        dispute     is    “capable       of    repetition,          yet   evading



                                             15
review.”       Southern Pac. Term. Co., 219 U.S. at 515.                       The Supreme

Court has explained

       that in the absence of a class action, the “capable of
       repetition, yet evading review” doctrine was limited
       to the situation where two elements combined: (1) the
       challenged action was in its duration too short to be
       fully litigated prior to its cessation or expiration,
       and (2) there was a reasonable expectation that the
       same complaining party would be subjected to the same
       action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam);

see id. (holding that doctrine did not prevent the case from

being moot because the “case, not a class action, clearly does

not satisfy the latter element”).

                                               A.

       Regarding Counts I and II, the FEC repeats its argument

presented      below       that   Stop       PAC    lacked    standing        to   prosecute

Counts     I    and    II.        The     FEC       also    repeats     its    alternative

contention that Counts I and II became moot once Stop PAC and

Intervenor American Future became MPCs, since that change in

status ensured that they would never again be bound by the limit

they are challenging.             We agree with this latter argument.                    See

United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011)

(per   curiam)        (holding     that      exception’s       same-complaining-party

requirement      was       not    met    when       plaintiff    challenging        special

conditions of juvenile supervision had turned 21 and thus would

“never   again        be   subject      to   an     order    imposing    [such]     special


                                               16
conditions”).         Because we conclude that Counts I and II became

moot before the district court granted summary judgment, we do

not address the FEC’s contention that Stop PAC never established

standing       to    assert    these      claims       in     the      first    place.        See

Arizonans for Official English, 520 U.S. at 66-67 (declining to

decide standing issue when claim was moot).

      Appellants       do     not    deny      that    once       Stop    PAC   and    American

Future     became       MPCs    and       the        contribution         limit       they   are

challenging         therefore       ceased     to     apply       to   them,    the    district

court was no longer in position to prevent any threatened injury

(or     provide      redress        for   any        past    injury).           Nevertheless,

Appellants argue that the “capable of repetition, yet evading

review”    doctrine         applied       to    prevent        Counts      I    and    II    from

becoming moot.          In this regard, Appellants do not dispute the

fact that there was no longer any reasonable expectation that

they would be subject to the same limit again.                                  Rather, they

maintain that in election-related cases, the same-complaining-

party element need not be satisfied.                        We disagree.

      In support of their argument, Appellants rely primarily on

Justice Scalia’s dissent in Honig v. Doe, 484 U.S. 305, 335-36

(1988)    (Scalia,      J.,     dissenting).                 In     the   dissent,      Justice

Scalia cited abortion and election cases in which he argued the

Court    had    “dispens[ed]          with     the     same-party         requirement”        and

“focus[ed] instead upon the great likelihood that the issue will

                                                17
recur between the defendant and the other members of the public

at large.”          Id. (emphasis in original). 3

       Since Honig was decided, courts have taken different views

regarding whether the cases cited in Justice Scalia’s dissent

indicated       a    deliberate    decision     by   the   Supreme    Court    not   to

apply the same-complaining-party requirement in election cases.

Partially as a result of this disagreement, courts have reached

different       results     when    considering      arguments       like   the   ones

Appellants now raise.             Compare Van Wie v. Pataki, 267 F.3d 109,

114-15 (2d Cir. 2001) (applying same-plaintiff requirement in an

election case), and Barilla v. Ervin, 886 F.2d 1514, 1519-20 &

n.3 (9th Cir. 1989) (same), with Catholic Leadership Coal. of

Tex.       v.   Reisman,     764    F.3d    409,     423-24    (5th     Cir.      2014)

(concluding that same-plaintiff requirement need not be met in

election cases), Lawrence v. Blackwell, 430 F.3d 368, 372 (6th


       3
       Justice Scalia acknowledged that those cases may “have
been limited to their facts, or to the narrow areas of abortion
and election rights, by [the Court’s] more recent insistence
that, at least in the absence of a class action, the ‘capable of
repetition’   doctrine  applies   only   where  ‘there  [is]   a
“reasonable expectation”’ that the ‘same complaining party’
would be subjected to the same action again.” Honig v. Doe, 484
U.S. 305, 336 (1988) (Scalia, J., dissenting) (emphasis in
original).    In class actions, at least when the class is
certified while the case remains live for the named plaintiff, a
reasonable expectation that someone in the represented class
will be subject to the same action may be sufficient to satisfy
the “capable of repetition” prong of the exception. See Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530-31 (2013);
Sosna v. Iowa, 419 U.S. 393, 401-02 (1975).


                                           18
Cir. 2005) (same), and Majors v. Abell, 317 F.3d 719, 723 (7th

Cir. 2003) (same).

       In   the    end,    we   need    not    decide       whether     we    believe     the

Supreme Court has sub silentio limited, or created an exception

to, the requirements of the “capable of repetition, yet evading

review” doctrine.           That is so because even were we to conclude

that    the   Supreme       Court      has     actually          sub   silentio    excused

compliance with the rule in some election cases, we would be

obligated     to    follow      the    rule        that    the     Court     has   actually

articulated.        See, e.g., Shalala v. Illinois Council on Long

Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not

normally overturn, or so dramatically limit, earlier authority

sub silentio.”); Hohn v. United States, 524 U.S. 236, 252–53

(1998) (“Our decisions remain binding precedent until we see fit

to reconsider them, regardless of whether subsequent cases have

raised doubts about their continuing vitality.”); Agostini v.

Felton, 521 U.S. 203, 237 (1997) (explaining that if a Supreme

Court   precedent         directly     controls,          “yet    appears     to   rest   on

reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving

to [the Supreme] Court the prerogative of overruling its own

decisions” (internal quotation marks omitted)); id. (explaining

that lower courts should not conclude that the Supreme Court’s

“more recent cases have, by implication, overruled [its] earlier

                                              19
precedent”); Mackall v. Angelone, 131 F.3d 442, 445–49 (4th Cir.

1997) (en banc) (applying Agostini and refusing to create an

exception to a general rule articulated by the Supreme Court

even though a subsequent Supreme Court case had noted that in a

future     case   the    Court     might           adopt    the       exception         we   were

considering).

     Moreover, the Supreme Court has actually applied the same-

complaining-plaintiff          rule   in       two    relatively            recent      election

cases.      FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449

(2007),     concerned      an     as-applied           challenge            to      a    federal

prohibition       on    the     use      of        corporate          funds        to    finance

“electioneering        communications”             during    a     60-day         pre-election

black-out period.        See id. at 457-60.                With the black-out period

long over, the Supreme Court considered whether the case met the

requirements of the “capable of repetition, yet evading review”

doctrine.     The Court explained that “[t]he second prong . . .

requires     a     ‘reasonable        expectation’               or     a        ‘demonstrated

probability’ that ‘the same controversy will recur involving the

same complaining party.’”                Id. at 463 (emphasis added).                         The

Court    concluded      that    the   requirement            was      met     in    that     case

because    the    plaintiff      “credibly          claimed       that       it    planned     on

running     materially         similar        future        targeted         broadcast        ads

mentioning a candidate within the blackout period, and there is

no reason to believe that the FEC will refrain from prosecuting

                                              20
violations      of”     the     challenged         statute.           Id.      (citation      and

internal quotation marks omitted).

     In Davis v. FEC, 554 U.S. 724 (2008), the Supreme Court

reviewed a challenge from a self-financed candidate to certain

campaign-finance-disclosure               requirements              to      which     he      was

subject.        See     id.    at    731-32.         With       the      litigation        having

continued       after     the        election       occurred,            the    Court       again

considered      whether        the    “capable      of     repetition,          yet     evading

review” doctrine applied.                The Court again applied the same-

complaining-party requirement, and determined it was satisfied

because the candidate had publicly announced that he intended to

run again as a self-financed candidate.                        See id. at 735-36.

     Like    the      Supreme       Court,    we    have       also      applied     the    same-

complaining-plaintiff            requirement         in     recent         election        cases.

Most recently, in Lux v. Judd, 651 F.3d 396 (4th Cir. 2011), we

reviewed    a   constitutional          challenge         to    a     state’s      requirement

that each signature on a petition for ballot placement by an

independent candidate for Congress be witnessed by a district

resident.       See id. at 398.               In considering whether the case

satisfied the requirements of the “capable of repetition, yet

evading     review”      doctrine,       we     noted      that       “[e]lection-related

disputes qualify as ‘capable of repetition’ when ‘there is a

reasonable expectation that the challenged provisions will be

applied    against       the    plaintiffs         again       during       future    election

                                              21
cycles.’”         Id. at 401.        We concluded that that requirement was

satisfied in that case.              See id.

       For all of these reasons, we conclude that we are bound to

apply       the    doctrine        that     we        and     the    Supreme         Court     have

articulated — and recently applied — and we must leave to the

Supreme Court the decision of whether it wishes to create an

exception         to,   or    otherwise        limit,        that    rule.          Accordingly,

because      Appellants        cannot     satisfy           the     same-complaining-party

requirement,        the      “capable     of     repetition,         yet      evading       review”

doctrine does not apply, and the district court erred in not

dismissing         Counts      I    and     II        for     lack       of        subject-matter

jurisdiction.           We therefore vacate the district court’s merits

ruling      regarding        the   claims      and     remand       them      to    the    district

court for dismissal in accordance with Rule 12(h)(3).

                                                 B.

       The FEC contends that the district court erred in declining

to dismiss Count III on mootness grounds as well.                                  We disagree.

       In     Count          III    the     Fund            and     ARCC       challenge        the

constitutionality of the annual $5,000 limit that applies to

contributions from MPCs to state political party committees and

their       local       affiliates,         and         the       Fund        challenges        the

constitutionality of the annual $15,000 limit on contributions

from     MPCs      to   national        party         committees.             See     52     U.S.C.



                                                 22
§ 30116(a)(2)(B)-(C).                   The     FEC       advances          distinct         mootness

arguments concerning each of these two challenges.

       Regarding the challenge to the limit on contributions to

state party committees and their local affiliates, the FEC notes

that    the    Amended        Complaint        alleges         that    the       Fund    wished      to

“immediately      contribute            an    additional        $5,000       to     .   .     .    ARCC,

which would bring its total contributions to . . . ARCC for the

year 2014 to $10,000.”              J.A. 59.            The     FEC        argues       that,      once

2014 ended, this challenge was moot because the district court

could    not    grant        the   Fund      the    right      to     contribute         additional

amounts to ARCC in 2014.

       We   conclude,         however,        that      this    challenge,          unlike         those

presented in Counts I and II, easily fits into the “capable of

repetition, yet evading review” exception.                                   It is undisputed

that the election cycle is too short in duration for election

disputes to be fully litigated within a single cycle.                                       See Moore

v. Ogilvie, 394 U.S. 814, 816 (1969).                               And the Fund very well

may wish to contribute more than $5,000 to the ARCC in future

years.      To invoke the exception, Appellants are not required to

forecast       evidence          that   they       were    so       inclined.            See       North

Carolina       Right        to     Life      Comm.       Fund       for      Indep.         Political

Expenditures          v.     Leake,     524    F.3d       427,        435    (4th       Cir.      2008)

(holding       that    constitutional              challenges         to    system       of       public

financing       for        judicial     elections,         brought          by    two       political

                                                   23
committees and a candidate, were not mooted by the election even

though neither the political committees nor the candidate had

specifically alleged an intent to participate in future election

cycles; concluding that “there is a reasonable expectation that

the challenged provisions will be applied against the plaintiffs

again during future election cycles”; rejecting “the argument

that an ex-candidate’s claims may be ‘capable of repetition yet

evading review’ only if the ex-candidate specifically alleges an

intent to run again in a future election”); see also Honig, 484

U.S. at 318-19 n.6 (“Our concern in these cases, as in all

others   involving     potentially    moot    claims,      was   whether   the

controversy was capable of repetition and not . . . whether the

claimant had demonstrated that a recurrence of the dispute was

more probable than not.” (emphasis in original)).

      As for the Fund’s challenge to the annual $15,000 limit on

contributions from MPCs to national party committees, the FEC

contends that that challenge was mooted by the December 2014

change in the law referenced earlier.             The Fund had alleged in

its   2014   Amended   Complaint     that    it   wanted    to   “immediately

contribute $32,400 to the” NRSC.            J.A. 59.       The December 2014

amendment authorized the NRSC to create a segregated account to

fund their building-headquarters expenses and another to fund




                                     24
their election-related legal expenses. 4                 See Consolidated and

Further Continuing Appropriations Act, 2015, Pub. L. 113-235,

Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified

as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)).

Under the new law, donors may make contributions to each of

these new accounts in amounts up to three times the amounts they

could previously contribute to a national party committee.                       See

id.    In this way, if the NRSC created such segregated accounts,

the    Fund    would   have   been   free      to   contribute    $32,400   to    the

building-fund account or legal-fund account were it so inclined.

We conclude, however, that the possible availability of this new

option did not moot the challenge here.                  Nothing in the record

indicates that the Fund had or has any interest in donating to

such specialized accounts.              Because the $15,000 limit that the

Fund   is     challenging     remains    in    place,   we   conclude    that    this

challenge, like the challenge to the $5,000 annual limit on MPC

contributions to state and local political committees, fits into

the “capable of repetition, yet evading review” exception.

                                         IV.

       Having     determined     that      the      district     court   possessed

subject-matter jurisdiction over Count III, and that we continue

       4
       The provision pertaining to accounts for the expenses
concerning presidential nominating conventions does not apply to
national congressional campaign committees.      See 52 U.S.C.
§ 30116(a)(9)(A).


                                          25
to   possess     jurisdiction           as    well,        we     turn     to   Appellants’

contention that the district court erred in granting summary

judgment to the FEC on the merits on that claim.                                We conclude

that the district court was correct to grant summary judgment.

     “We review a district court’s decision to grant summary

judgment    de   novo,     applying          the    same    legal      standards     as   the

district court, and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party.”

T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,

384–85    (4th    Cir.     2012)    (internal             quotation      marks    omitted).

Summary judgment is appropriate “if the movant shows that 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).

     Although the Fourteenth Amendment’s Equal Protection Clause

does not apply to the federal government, the Fifth Amendment’s

Due Process Clause contains an equal protection component.                                 See

Bolling    v.    Sharpe,    347    U.S.       497,        499    (1954).        Indeed,   the

Supreme    Court     has     explained             that         “the   equal     protection

obligations imposed by the Fifth and the Fourteenth Amendments

[are] indistinguishable.”               Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 217 (1995).

     “To succeed on an equal protection claim, a plaintiff must

first    demonstrate     that      he    has       been    treated       differently      from

                                              26
others with whom he is similarly situated and that the unequal

treatment       was        the    result        of     intentional       or     purposeful

discrimination.”            Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001).         “Once this showing is made, the court proceeds to

determine whether the disparity in treatment can be justified

under the requisite level of scrutiny.”                      Id.

      Count III alleges that the challenged limits violate the

Fifth Amendment’s equal protection component by discriminating

against      MPCs    and    in    favor    of    political      committees      that   have

satisfied the other MPC criteria but have yet to complete the

waiting      period.        The    critical          case   governing    this    claim   is

California Medical Ass’n v. FEC, 453 U.S. 182 (1981) (“CMA”).

In    that    case,        an    unincorporated         association      of     California

doctors,      along    with       other    plaintiffs,         brought    a   declaratory

judgment      action       challenging      the       constitutionality       of   a   FECA

provision           prohibiting           individuals           and      unincorporated

associations from contributing more than $5,000 to any MPC in a

calendar year.         See id. at 185-86.               One basis for the challenge

was that the provision violated the equal protection component

of the Fifth Amendment’s Due Process Clause.                            See id. at 200.

The   plaintiffs’          position   was       that    even    though   unincorporated

associations were similarly situated to corporations and labor

unions, the provision treated unincorporated associations more

harshly since corporations and labor unions were not subject to

                                                27
a similar limit. 5   See id.   The district court certified the

constitutional questions in the case to the Ninth Circuit, which

upheld the provision.    See id. at 186.     The plaintiffs then

sought review of that decision in the Supreme Court.   See id. at

186-87.

     Like the Ninth Circuit, the Supreme Court concluded that

the challenged limit did not violate the Fifth Amendment.       The

Court reasoned as follows:

     In order to conclude that [the restriction] . . .
     violates the equal protection component of the Fifth
     Amendment, we would have to find that because of this
     provision [FECA] burdens the First Amendment rights of
     persons subject to [the challenged restriction] to a
     greater extent than it burdens the same rights of
     corporations and unions, and that such differential
     treatment is not justified. We need not consider this
     second question — whether the discrimination alleged
     by appellants is justified — because we find no such
     discrimination. Appellants’ claim of unfair treatment
     ignores the plain fact that the statute as a whole
     imposes far fewer restrictions on individuals and
     unincorporated   associations     than   it    does   on
     corporations and unions.       Persons subject to the
     [challenged    restriction]     may    make    unlimited
     expenditures on political speech; corporations and
     unions,   however,   may    make    only   the   limited

     5 FECA allowed corporations and labor unions to pay for the
establishment, administration, and solicitation of a “‘separate
segregated fund to be utilized for political purposes.’”
California Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (quoting
2 U.S.C. § 441b(b)(2)(C) (now 52 U.S.C. § 30118(b)(2)(C))).
There was no statutory limitation on the amount these groups
could spend on such funds. See id. And, the plaintiffs claimed
that the contributions of a corporation or labor union to its
segregated political fund should be considered to be directly
analogous to the contributions of an unincorporated association
to an MPC. See id.


                               28
      contributions authorized by § 441b(b)(2) [now 52
      U.S.C. § 30118(b)(2)].     Furthermore, individuals and
      unincorporated    associations      may    contribute    to
      candidates, to candidates’ committees, to national
      party   committees,   and    to    all    other   political
      committees   while    corporations      and    unions   are
      absolutely barred from making any such contributions.
      In addition, [MPCs] are generally unrestricted in the
      manner   and   scope   of    their    solicitations;    the
      segregated funds that unions and corporations may
      establish pursuant to §441b(b)(2)(C) [now 52 U.S.C.
      § 30118(b)(2)(C)]   are   carefully     limited    in  this
      regard.

Id. at 200-01 (emphasis in original).

      The    FEC    argues     that      the    claims    here    fail   for    similar

reasons     in    that   political       committees      overall    clearly     receive

more favorable treatment under FECA than do other groups.                             For

that reason, the FEC argues, there is no discrimination by FECA

against MPCs that must be justified.                  We largely agree with the

FEC’s position, but with one caveat.                       We believe the FEC is

correct     to    the    extent    it    argues     that    CMA    requires     us,   in

determining whether actionable discrimination has occurred, to

compare     the    treatment      the    relevant    respective      groups     receive

under FECA overall, not just the treatment the groups receive

under the specific provision of FECA that is being challenged.

We   conclude,      however,      that    the    proper    comparison      is   between

political        committees    that       have    become     MPCs    and    political

committees that have not completed the waiting period but have

satisfied the other MPC conditions.                      It is those two groups,




                                           29
after all, that Appellants maintain are similarly situated yet

treated differently under FECA.

       Nevertheless,        in    our    estimation,           Appellants     cannot       show

that    FECA     overall         burdens    the        First     Amendment       rights     of

political committees that have become MPCs more than it burdens

the rights of political committees that have satisfied all MPC

requirements but the waiting period.                           That is so because the

decrease       in    the        amount     of        contributions        that    political

committees, once they become MPCs, can make annually to state

party   committees         or    their     local      affiliates      (from      $10,000    to

$5,000)    and      to   national        party        committees     (from       $32,400    to

$15,000) is more than counteracted by the increase in the limits

in the amount of contributions that MPCs can make to individual

candidates (from $2,600 to $5,000).                     To the extent that there is

a difference in treatment, it appears to us to favor the MPCs in

that the total amount of money MPCs can contribute overall will

be   substantially         greater       since       there     are   so   many    different

individual       candidates        to    which        the    respective     entities       can

contribute.         Because       Appellants          cannot    demonstrate       that     FECA

discriminates against MPCs, there is no discrimination to be

justified, and we conclude that the FEC was entitled to summary

judgment on Count III.




                                                30
                                          V.

     In    sum,    we    conclude    that      the   district    court     erred   in

adjudicating the merits of Counts I and II, as those claims

became    moot    once    the   political       committees      challenging    them

became MPCs and were no longer subject to the limitations they

were challenging.         Accordingly, we vacate the merits judgment on

those claims and remand to the district court with instructions

to dismiss them for lack of subject-matter jurisdiction.                     On the

other    hand,    we    conclude    the   district     court    properly    granted

summary   judgment       to   the   FEC   on   Count   III,     and   we   therefore

affirm the judgment on that claim.

                                                            AFFIRMED IN PART;
                                                 VACATED AND REMANDED IN PART
                                                 WITH INSTRUCTIONS TO DISMISS




                                          31
