Ronald Weiser; Michigan Republican Party v. Jocelyn Benson, in her official capacity as Secretary of State

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0208p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD WEISER; MICHIGAN REPUBLICAN PARTY,
Plaintiffs-Appellants,
v.
JOCELYN BENSON, in her official capacity as Secretary
of State,
Defendant-Appellee,
WHITMER FOR GOVERNOR COMMITTEE,
Intervenor-Appellee.
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No. 22-1014
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:21-cv-00816—Janet T. Neff, District Judge.
Argued: June 9, 2022
Decided and Filed: September 9, 2022
Before: WHITE, BUSH, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Edward M. Wenger, HOLTZMAN VOGEL BARAN TORCHINSKY &
JOSEFLAK PLLC, Washington, D.C., for Appellants. Erik A. Grill, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee Benson. Christopher
M. Trebilcock, CLARK HILL PLC, Detroit, Michigan, for Appellee Whitmer. ON BRIEF:
Edward M. Wenger, Jason B. Torchinsky, HOLTZMAN VOGEL BARAN TORCHINSKY &
JOSEFLAK PLLC, Washington, D.C., for Appellants. Erik A. Grill, Heather S. Meingast,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee
Benson. Christopher M. Trebilcock, Carly O. Machasic, CLARK HILL PLC, Detroit, Michigan,
for Appellee Whitmer.
WHITE, J., delivered the opinion of the court in which BUSH, J., joined. READLER, J.
(pp. 15–20), delivered a separate opinion concurring in part and in the judgment.
>

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_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Plaintiffs-Appellants—Ronald Weiser, a
Republican donor and chair of the Michigan Republican Party (MRP), and the MRP—filed this
action against Defendant-Appellee, Michigan Secretary of State Jocelyn Benson, alleging that an
interpretative statement and a declaratory ruling issued by the Michigan Secretary of State in the
1980s (the recall exception) violates the First and Fourteenth Amendments because it allows
supporters of Governor Gretchen Whitmer to make or receive contributions on more favorable
terms than Weiser or the MRP with respect to the 2022 gubernatorial election. The district court
dismissed the action for lack of standing after concluding that neither Weiser nor the MRP had
suffered an injury in fact. Because Weiser and the MRP fail to plausibly demonstrate that the
recall exception prevents Weiser or the MRP from equally supporting their preferred
gubernatorial candidate, we AFFIRM.
I.
A.
The Michigan Campaign Finance Act (MCFA) limits the amount of money individuals
and groups may donate to candidates vying for publicly elected offices during each election
cycle. See Mich. Comp. Laws § 169 et seq. The general-election cycle begins “the day
following the last general election in which the office appeared on the ballot” and ends “on the
day of the general election in which the office next appears on the ballot.” Id. § 169.205(3)(a).
During this period, individuals may contribute up to $7,150 to any candidate committee of a
candidate running for statewide elective office, including the office of governor; and state central
committees of a political party, like the MRP and the Michigan Democratic Party (MDP), may
contribute up to twenty times this amount. Id. § 169.252(1)(a), (4).1 The MCFA places no
limitations on when someone may become a general-election candidate; it requires only that a
1Section 169.252(1)(a) lists $6,800 as the applicable amount for individual contributions; however,
pursuant to her statutory duty, Benson increased this amount to $7,150. See Mich. Comp. Laws § 169.246 (allowing
the Secretary of State to adjust contribution limits based on increases or decreases in the consumer price index).

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candidate committee be formed to manage contributions and expenditures within ten days after
one becomes a candidate. See id. §§ 169.203(1), 169.221.
A “recall vote” is also an “election,” id. § 169.205(2), but different rules apply. In 1983,
the Michigan Secretary of State issued an interpretative statement to clarify that the general-
election contribution limits established in section 169.252 of the MCFA do not apply to
contributions made to an officeholder to defend against a recall effort. R. 1-1 PID 19. The
interpretative statement offers two rationales. First, although “contributions to a candidate
committee of a candidate for state elective office” are capped by the MCFA at various amounts,
because “a recall vote does not fill a public office . . . the candidate committee of an officeholder
subject to a recall vote is not a ‘candidate committee of a candidate for state elective office.’”
R. 1-1- PID 20. More simply, a recall election is not a general election. Second, because
proponents of a recall measure must organize a political committee and contributions to political
committees are not subject to any cap, capping contributions made to an officeholder facing
recall would allow “the political committee advocating the recall to engage in unlimited
fundraising, while severely limiting the officeholder’s ability to raise money.” R. 1-1 PID 21.
Therefore, if there is a recall effort actively underway, the officeholder’s committee may “accept
contributions in excess of section [169.252’s] contribution limitations.” R. 1-1 PID 21.
The interpretative statement further provides that contributions to an officeholder to
oppose an active recall effort must be so designated and must be deposited into the committee’s
account. R 1-1 PID 19–20. If a recall election never materializes, the officeholder’s committee
must divest itself of these contributions. R 1-1 PID 21. A recall donor may choose to allow the
officeholder to retain a portion of the contribution for her next election—but only up to the
MCFA’s $7,150 cap—by expressly stating this in writing; any portion of the recall contribution
exceeding the cap must be returned to the donor. R. 1-1 PID 21. “Any contribution, or portion
of a contribution, not otherwise designated by a contributor in the instance where a recall
election is not called, shall be given by the candidate committee to a political party committee or
to a tax exempt charitable organization.”2 R. 1-1 PID 21.
2Upon dissolution, a political committee may dispose of its funds in any legal manner, which the parties
suggest means that unexpended funds of a political committee advocating a recall may be disbursed to any political

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In 1984, the Michigan Secretary of State issued a declaratory ruling affirming the 1983
interpretative statement, including the statement’s conclusion that contribution limits during a
recall cycle must apply equally to “contributors to the proponents of a recall” and “contributors
to the committee of the state official who is the subject of the recall,” meaning that both sides
must be able to raise unlimited funds. R. 1-2 PID 25. The reasoning, again, was that because a
political committee promoting a recall effort is not subject to contribution caps, an officeholder
facing an active recall effort also should not be. R. 1-2 PID 24–25.
B.
In 2020 and 2021, apparently in response to Governor Whitmer’s various measures to
combat the spread of COVID-19 in the state, twenty-seven recall efforts were launched by
Michigan voters. R. 41-2 PID 289–297. The recall cycle—the time during which an
officeholder may accept recall funds—began on May 12, 2020, when the first recall petition was
filed, and ended on July 26, 2021, when the last recall petition became invalid for submission
and no other recall effort remained pending. See Letter from Adam Fracassi, Mich. Bureau of
Elections, to Tori Sachs, Michigan Freedom Fund, 6–11 (Dec. 21, 2021),
https://www.michigan.gov/sos/-/media/Project/Websites/sos/25delrio/MFF_v_Whitmer_File
_744164_7.pdf?rev=9446770e06764b3bac1b3d93a0b82833&hash=73C55FB1A93AFA14478D
0CE1992A877D (explaining how recall cycles begin and end) [hereinafter Fracassi Letter].3
During this time, the Whitmer for Governor Committee (Whitmer’s committee) raised over $3.7
million in recall funds from 157 donors. Appellants Br. at 8.
In December 2021, the Michigan Bureau of Elections (Bureau) ordered Whitmer’s
committee to disgorge all recall-designated funds, as directed by Mich. Comp. Laws § 169.245,
party or tax-exempt organization as well. See Dissolution of a Committee, Mich. Bureau of Elections,
https://mertsplus.com/mertsuserguide/index.php?n=MANUALS.AppendixW (last visited Aug. 25, 2022); see also
Letter from Terri Lynn Land, Mich. Secretary of State, to Gary R. Campbell, Lippert, Humphreys, Campbell, Dust
& Humphreys, P.C., 2 (Aug. 21, 2006), https://www.michigan.gov/-/media/Project/Websites/sos/01anchak
/Gary_Campbell__DR_IS_8212006.pdf?rev=1aac90650c694367a090a339b541b31e (noting the absence of
authority regarding the disposition of unexpended funds by a political committee).
3Benson asks the court to take judicial notice of the Fracassi Letter. Because the letter is publicly available
and there is no reason to doubt that it accurately represents the findings and conclusions of the Michigan Bureau of
Elections, we grant Benson’s motion.

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except those being used to defend the committee in litigation related to the many recall petitions.
Fracassi Letter at 9–10. Section 169.245, which normally applies upon termination of a
candidate committee, provides that “unexpended funds in the candidate committee that are not
eligible for transfer to another candidate committee of the person . . . shall be disbursed as
follows”:
(a) Given to a political party committee.
(b) Given to a tax exempt charitable organization, as long as the candidate does
not become an officer or director of or receive compensation, either directly or
indirectly, from that organization.
(c) Returned to the contributors of the funds upon termination of the campaign
committee.
(d) If the person was a candidate for the office of state representative, given to a
house political party caucus committee.
(e) If the person was a candidate for the office of state senator, given to a senate
political party caucus committee.
(f) Given to an independent committee.
(g) Given to a ballot question committee.
Mich. Comp. Laws § 169.245(2). When ordering Whitmer’s committee to disgorge leftover
recall funds, the Bureau stated that the committee had not expended any portion of them on
“campaign advertising.” Fracassi Letter at 11. On December 29, 2021, Whitmer’s committee
disgorged the leftover recall funds, refunding $250,000 to an individual donor and disbursing
over $3.5 million to the MDP. Appellants Br. at 9; Defendant-Appellee Br. at 8; Intervenor-
Appellee Br. at 7.
C.
On September 20, 2021, Weiser and the MRP filed suit against Benson, in her official
capacity, alleging that Whitmer’s committee had “decided to suborn, accept, and retain
contributions from her supporters in excess of the [MCFA’s] legal limits” by using the recall
exception to “circumvent[] the contribution limits that apply to all other candidates in the [2022]
gubernatorial race.” R. 1 PID 1–2. Weiser and the MRP claimed they are prevented from
“supporting their candidates to the same level and extent as that enjoyed by their Democrat
counterparts” in violation of the First and Fourteenth Amendments, and asked for declaratory

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and permanent injunctive relief to enjoin Benson from “applying or implementing” the recall
exception in the “upcoming gubernatorial election,” and temporary injunctive relief to “ensure an
equitable application of the MCFA to all parties involved in the gubernatorial race.” R. 1 PID 8,
15–16. Whitmer’s committee filed an unopposed motion to intervene in mid-October. R. 8; R.
11.
On November 15, Whitmer’s committee informed the Michigan Board of Canvassers that
it intended to disburse all recall funds, which Weiser and the MRP understood to mean a
disbursement of funds to the MDP “or to dark money groups aligned with Whitmer’s campaign.”
R. 37-1 PID 208; R. 34-1 PID 152. Weiser and the MRP moved for a temporary restraining
order (TRO) three days later, R. 34, arguing that disbursing funds to the MDP would allow it to
help Whitmer’s “reelection campaign (or those of her political allies), which results in the same
inequity that the Plaintiffs are trying to remedy by pursuing this lawsuit—i.e., Governor
Whitmer’s one-sided end-run around Michigan campaign-contribution limits” with respect to the
2022 general election. R. 34-1 PID 154. Weiser and the MRP argued that “the only
constitutionally acceptable remedy” is to order “the return of such funds to the donors who
contributed them.” R. 34-1 PID 155.
At the TRO hearing, Weiser and the MRP stated that their constitutional claim “boils
down to this”:
One particular kind of competitor in the 2022 election, a candidate, can raise
unlimited money and then transfer that money to her allies at the conclusion of the
recall proceedings, and another class of candidates, namely, you know,
Republican candidates for governor, are subjected to the $7,150 limit. They
cannot raise unlimited funds, and they cannot transfer those unlimited funds to
their allies.
R. 45 PID 399. Whitmer’s committee responded that Weiser had given over $1 million to the
MRP over the last year, “[s]o to somehow allege that he’s been harmed by contributions in
excess of $7,150 that might end up in the Democratic coffers . . . does not ring true.” R. 45 PID
409–10. Weiser and the MRP replied that allowing candidates to raise unlimited amounts and
“inject [them] into the state’s political economy is problematic” because “no Republican
candidate for governor can compete with” such amounts. R. 45 PID 413–14. The district court

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denied the TRO motion after concluding that Weiser and the MRP failed to show irreparable
harm or “even a minimal infringement on” their constitutional rights. R. 45 PID 416–20. It also
determined that the “question of standing . . . is a major one” and ordered the parties to brief the
issue. R. 45 PID 405, 421.
In its supplemental brief, Whitmer’s committee argued that Weiser and the MRP alleged
no plausible injury in fact: they “have the same ability to financially support the recall
committees against incumbents like Governor Whitmer . . . [and] the same ability to support
political parties and non-profit entities that are likely to support candidates that oppose Governor
Whitmer’s re-election efforts during the 2022 gubernatorial election.” R. 46 PID 433. In short,
“Plaintiffs can engage in the exact same activity they seek to prevent.” R. 46 PID 437. Benson
argued much the same, adding that because the recall exception specifically prohibits Whitmer’s
committee from using recall funds in excess of MCFA limits to support her reelection, it actually
prevents the occurrence of Weiser’s or the MRP’s claimed injury. R. 47 PID 453–56.
Weiser and the MRP further argued that because Weiser’s speech was “capped at $7,150
while scores of individuals who support the Governor have given her up to thirty-five times that
amount” and “none of the political parties who oppose Governor Whitmer’s reelection efforts
(especially the Michigan Republican Party) enjoy the same uninhibited money-movement
flexibility that the Michigan Democratic Party is about to exploit,” both plaintiffs have standing.
R. 48 PID 460. Weiser and the MRP also argued that because Whitmer “has already spent some
of these so-called recall funds . . . means that a concrete injury has in fact occurred and cannot be
mooted by her proposed actions,” and that “giving these funds to the political party that can (and
will) either send this money right back to her campaign or use the money to promote her
reelection efforts” does not solve the “unequal political-fundraising field” created by the recall
exception. R. 48 PID 461.
The district court determined that because Weiser and the MRP’s complaint “is based not
on a restriction—individual contribution limits under [section 169.252]—but rather on elevated
or unlimited contribution limits applied across the board to detractors and supporters in recall
campaigns,” they failed to show a direct injury resulting from asymmetrical contribution limits.
R. 50 PID 493–94. The district court also stated that complaining about Michigan’s lack of

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harmonization between contribution limits in the recall- and general-election contexts is not a
grievance particular to Weiser or the MRP; it is no different than claiming a harm to every
citizen’s interest. R. 50 PID 494. Finally, the district court determined that Weiser and the
MRP’s alleged harm was self-inflicted because “Plaintiffs concede that they could have
contributed unlimited amounts to a recall committee opposing the Governor but did not do so.”
R. 50 PID 495. After concluding that Weiser and the MRP lacked standing, the district court
dismissed the action. R. 50 PID 496. Weiser and the MRP timely appealed. R. 51.
II.
This court reviews de novo whether a plaintiff has standing. Price v. Medicaid Dir.,
838 F.3d 739, 745 (6th Cir. 2016). “To qualify for standing, a claimant must present an injury
that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's
challenged behavior; and likely to be redressed by a favorable ruling.” Davis v. Fed. Election
Comm’n, 554 U.S. 724, 733 (2008) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992)). Here, the dispute turns on the first element—an injury in fact—which either Weiser or
the MRP must plausibly demonstrate for the action to survive dismissal. Ass’n of Am.
Physicians & Surgeons v. U.S. Food & Drug Admin., 13 F.4th 531, 543–44 (6th Cir. 2021);
Parsons v. U.S. Dep’t of Just., 801 F.3d 701, 710 (6th Cir. 2015).
An injury in fact is “an invasion of a legally protected interest which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural or hypothetical.” Parsons, 801 F.3d at
710 (quoting Lujan, 504 U.S. at 560). To be concrete, the injury must be “real, and not abstract”;
and, to be particularized, it “must affect the plaintiff in a personal and individual way.” Spokeo,
Inc. v. Robins, 578 U.S. 330, 339–40 (2016) (internal quotation marks omitted); see also id. at
339 n.7 (noting that simply because others may suffer the same injury does not mean that the
injury is necessarily a generalized grievance). “Actual” is just that—a direct injury that has been
sustained. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). “Imminence,” although “a
somewhat elastic concept,” cannot be “too speculative”: it must be “certainly impending,” not
merely a “possible future injury.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 411 (2013).

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In short, either Weiser or the MRP4 must plausibly demonstrate that a real and direct
harm has been sustained in an individual way (or is certainly impending).5
III.
A contribution scheme that allows a candidate to receive contributions on more favorable
terms than his or her opponent may give rise to a cognizable injury in fact. Davis, 554 U.S. at
729, 734–35 (concluding that a self-funded candidate had standing to challenge a statute that
allowed his non-self-financing opponent to receive contributions at treble the normal limit until
both had expended $350,000).6 By extension, a contribution scheme that allows one candidate’s
supporters to contribute or collect funds on more favorable terms than another’s may give rise to
an injury in fact as well. Weiser and the MRP contend that this is the case here, framing their
injury as that the recall exception allowed Whitmer donors to give uncapped amounts to
Whitmer’s committee during the recall cycle, most of which ended up with the MDP after the
cycle had ended, yet Weiser and the MRP cannot contribute or raise funds in the same way for
the 2022 Republican gubernatorial candidate. Appellants Br. at 20–25. However, this framing
conflates the recall- and general-election contexts. Because the two contexts involve distinct
4We note that the MRP asserts that it has both standing “in its own right” and associational standing.
Appellants Br. at 23. However, an organization must “identify a member who has suffered (or is about to suffer) a
concrete and particularized injury from the defendant's conduct” to establish associational standing. Ass’n of Am.
Physicians & Surgeons, 13 F.4th at 543–44. Here, the only identified member of the MRP is Weiser, so the
question of MRP’s associational standing turns solely on whether Weiser plausibly demonstrates an injury in fact.
5Although standing is determined on a claim-by-claim basis, all the parties argue the First and Fourteenth
Amendment claims as one. See, e.g., Appellants Br. at 20 (“Because [Weiser and the MRP] have legally cognizable
interests (protected by the First and Fourteenth Amendments) in uniform campaign contribution limits, the next
question is whether the Recall Exception harms those interests in a concrete and particularized way.”). We will
consider them as one as well. Cf. Davis, 554 U.S. at 733–35 (considering nearly identical claims as one).
6We recognize that, as in Davis, whether Weiser or the MRP plausibly demonstrates that the recall
exception inflicts an injury in fact shades into whether they plausibly allege a constitutional basis for their claims.
In Davis, the Supreme Court first considered the issue of standing, concluding that the plaintiff adequately
demonstrated injury in fact by showing that a contribution scheme “allow[ed] his opponent to receive contributions
on more favorable terms.” 554 U.S. at 734–35. Then, when considering the merits, the Court stated that if a
contribution scheme allowed the plaintiff’s opponent to raise more money because of asymmetrically favorable
terms, it would impermissibly diminish the plaintiff’s free speech; but, if contribution limits applied across the
board, there would be no basis to challenge them. Id. at 736–38. Based on the Court’s reasoning, if a contribution
scheme allows opponents to raise or contribute campaign funds on equitable terms, no injury in fact would be
sustained. In this case, unlike in Davis, a plaintiff challenging the scheme would lack standing and the inquiry
would end.

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types of opponents and contribution rules, we must analyze them separately to determine
whether Weiser and the MRP plausibly demonstrate an injury in fact in either context.
A.
When the governor is subject to recall, candidates do not vie for the office.7 Instead, a
recall pits the governor, as an officeholder, against proponents of his or her recall. If the recall
effort results in a recall election, the ballot simply asks whether the governor should be recalled.
Mich. Comp. Laws § 168.975e. And, if the governor is recalled, he or she is replaced as
designated in the Michigan Constitution, beginning with the Lieutenant Governor. Mich. Comp.
Laws § 168.975g; Mich. Const. art. V, § 26.
These are special rules applying only to a special election to recall the governor; a
gubernatorial recall election is wholly distinct from a general election in which opposing
candidates compete against each other to fill the office. Framing contributions in the recall
context as contributions to a gubernatorial candidate is thus not accurate. The relevant question
is whether the recall exception allowed rivals—those either opposing or supporting an effort to
recall Whitmer—to support their preferred recall outcome on equal terms.
Pursuant to the recall exception, Whitmer’s committee and any political committee
supporting her recall were held to same contribution limit: none. R 1-1 PID 21; R. 1-2 PID 24–
25. As a result, both proponents and opponents of Whitmer’s recall could contribute unlimited
funds while the recall cycle was open. R. 1-2 PID 24–25. Although Weiser and the MRP
declined to participate in the various recall efforts, they acknowledge that they could have
contributed unlimited funds to any political committee supporting Whitmer’s recall, Reply at 12,
just as donors opposing Whitmer’s recall could have contributed unlimited, recall-designated
funds to her committee or other committees opposing the recall, if any. In short, there was no
asymmetry with respect to Whitmer-recall fundraising and therefore no injury in this regard.
7However, when other state officeholders are subject to a recall election, an election with opposing
candidates is held and the candidate with the highest number of votes is elected for the rest of the term. Mich.
Comp. Laws § 168.975.

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Weiser and the MRP claim an additional harm: the recall exception allowed Whitmer’s
committee to “potentially spend [recall] funds” on her reelection efforts during the recall cycle.
R. 1 PID 7. But plaintiffs failed to provide factual support for this claim below and do not
develop it on appeal. R. 48 PID 474; Reply at 5. Moreover, the Bureau found no evidence that
Whitmer’s committee spent recall funds on campaign advertising, Fracassi Letter at 11, and the
recall exception explicitly prohibits officeholders from using recall funds to promote general-
election efforts, R. 1-1 PID 21. Thus, any harm related to this complaint is, at best, highly
speculative.
In sum, Weiser and the MRP fail to plausibly demonstrate that they suffered any injury in
fact in the recall context.
B.
In the general-election context—when candidates do, in fact, vie for office—the MCFA’s
contribution limits apply. Individuals may contribute up to $7,150 to a gubernatorial candidate’s
committee; and political parties, like the MDP or the MRP, may contribute up to twenty times
this amount. Mich. Comp. Laws § 169.252.8 Additionally, the MCFA permits individual donors
to give unlimited funds to political parties, and allows political parties to spend unlimited funds
generally in support of their preferred candidate. Appellants Br. at 25; Reply at 7, 14;
Defendant-Appellee Br. at 33–34; Intervenor-Appellee Br. at 15–16.
In this context, Weiser and the MRP claim that because the recall exception allowed
Whitmer’s committee to disburse leftover recall funds to the MDP, which may now use those
funds to support her reelection, Weiser and the MRP are unable “to support, on equal terms with
their political rivals, a candidate of their own choosing” given that they cannot make or receive
contributions in the same way. Appellants Br. at 27–28. We disagree.
With respect to individual contributions to 2022 gubernatorial candidates, Whitmer’s
committee was not allowed to retain any portion of a recall contribution unless a donor expressly
8As noted, although § 169.252 lists “$6,800” as the applicable individual cap, this amount has been
adjusted up to $7,150. See supra note 1.

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stated in writing that she could keep up to $7,150 for her next election.9 If a donor chose to
contribute the full $7,150, this donor would be maxed out and unable to contribute any more to
her reelection committee. This is the same general-election limit that applies to any contribution
Weiser may choose to make to his preferred gubernatorial candidate, so there is no asymmetry in
this regard.
We are also unpersuaded that the recall exception, by allowing leftover recall funds from
an officeholder’s committee to be disbursed to a political party, leaves the MRP unable to
support its preferred gubernatorial candidate on equal terms with the MDP. The MRP alleges
that because the MDP can contribute to Whitmer’s committee “a sum twenty-times the amount
an individual may donate—and then spend unlimited funds generally in support of her campaign
efforts,” the plaintiffs have sustained an injury in fact. Appellants Br. at 24. But, the MRP may
support its preferred candidate on the very same terms. Simply because leftover recall
contributions were disbursed to the MDP by Whitmer’s committee after the recall cycle had
ended does not mean that Whitmer’s committee and the MDP engaged in “a money-laundering
operation” to circumvent the MCFA’s contribution limits. Appellants Br. at 24. A political
party may collect unlimited funds at any time; the MDP did not need the recall exception to do
so.
9At oral argument, it was suggested that the recall exception allowed Whitmer’s committee to retain $7,150
from every recall contribution, even if a recall donor merely intended to support her recall defense, not necessarily
her reelection. This, however, does not comport with the language of the recall exception, which states that “a
contribution designated for the recall election may not be retained unless otherwise designated by” the recall donor.
R. 1-1 PID 21. If a recall election fails to be called, a recall donor “may indicate in writing that the portion of the
contribution not exceeding the applicable limitation [of the MCFA] may be retained by the candidate committee for
the next election in which the candidate is involved,” and the rest “must be returned” to the donor. R. 1-1 PID 21.
Thus, the only way for Whitmer’s committee to have retained a portion of any recall contribution is if the donor
expressly indicated that the donor wanted to contribute to Whitmer’s reelection effort in addition to her recall
defense.
According to Weiser and the MRP’s own accounting, of the roughly $3.7 million allegedly raised by
Whitmer’s committee to combat the recall efforts, $250,000 was returned to a donor and “the remaining
$3,548,865.61” was disbursed to the MDP. Appellants Br. at 8. This suggests that one donor may have allowed
Whitmer’s committee to retain a portion of the recall contribution for her reelection—which, again, would have
been capped at the same amount as Weiser’s contribution—while the others did not, given that contributions not
designated for return or the officeholder’s next election “shall” be disbursed to a political party or a tax-exempt
organization. R. 1-1 PID 21. We note that our decision does not rest on this understanding of the exception. Even
if Whitmer’s committee could retain $7,150 from each of the 157 donors to her recall defense, Weiser and the MRP
would still be on equal footing because those donors would be capped at the $7,150 contribution limit and would
then be unable to contribute any further amounts to the committee.

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Further, although the recall exception allowed money originally designated to stave off
Whitmer’s recall to be disbursed to the MDP at the end of the recall cycle, and the MDP could
now use some or all of these funds to further Whitmer’s general-election effort, we see no
asymmetrical contribution scheme. By contributing unlimited amounts to combat Whitmer’s
recall and not requesting the return of leftover funds or designating a portion of them for her
reelection once the recall cycle had ended, these donors effectively contributed these funds to the
MDP for the general election, not to Whitmer, just as Weiser may contribute unlimited amounts
to the MRP for the same purpose by a more direct route (in fact, Weiser donated over $1 million
to the MRP in 2021 alone, R. 41-6 PID 377). To be sure, the specific means by which Weiser
may contribute to the MRP is different, given that there was no Republican gubernatorial
candidate facing recall in 2020 and 2021, but this does not mean that the recall exception
prevents him from achieving the same end: giving uncapped amounts to a political party to
further its gubernatorial candidate’s election efforts.10 Consequently, Weiser and the MRP have
not suffered a plausible injury in fact. See Phillips v. DeWine, 841 F.3d 405, 416 (6th Cir. 2016)
(stating that standing for a free-speech claim generally requires showing that the policy in
question has prevented the plaintiff from engaging in protected speech); Johnson v. U.S. Off. of
Pers. Mgmt., 783 F.3d 655, 665 (7th Cir. 2015) (“The mere allegation of unequal treatment,
absent some kind of actual injury, is insufficient to create standing . . . standing [is not] based
solely on being treated differently.”); cf. Ne. Fla. Chapter of Associated Gen. Contractors of Am.
v. City of Jacksonville, 508 U.S. 656, 666 (1993) (recognizing that standing may be established
when it is more difficult for a group to obtain a benefit).
Weiser and the MRP argue that leftover recall contributions should have been returned to
Whitmer’s recall donors, not the MDP, but there is no indication that these donors, save one,
designated any contribution for return in lieu of disbursement (and, of course, any donor
grievance regarding a failure to return funds is not Weiser’s or the MRP’s to assert). Finally,
10Weiser and the MRP contend that contributing unlimited funds in support of a general-election candidate
is different from contributing unlimited funds to a political party, Reply at 8, 14, but, again, this framing is
unpersuasive because it conflates the recall- and general-election contexts. Whitmer’s recall donors gave designated
recall contributions to an officeholder facing recall, not a general-election candidate; then, the unexpended portions
of these contributions not designated for return to the contributors or for her reelection (up to the MCFA cap) were
disbursed to the MDP after the recall cycle had ended. Thus, at no point did Whitmer’s recall donors directly
contribute unlimited funds to a general-election candidate. Nor did Whitmer end up with unlimited funds.

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Weiser and the MRP contend that the recall exception allowed Whitmer to generate “(faux)
fundraising momentum” to “show undecided Michigan voters that others have faith in the job
she is doing.” Appellants Br. at 21, 23. However, even assuming that this type of harm has any
relation to Weiser and the MRP’s alleged injury in fact—being unable to contribute or raise
funds in the same way as Whitmer supporters—the recall exception never prevented Weiser
from giving unlimited amounts to generate fundraising momentum for the Republican
gubernatorial effort, or the MRP from spending unlimited amounts to spread the preferred
message that voters have lost faith in Whitmer as governor.11
In sum, Weiser and the MRP fail to plausibly demonstrate any injury in fact and therefore
lack standing.12
* * *
For the foregoing reasons, we AFFIRM the district court’s dismissal of the action.
11Judge Readler posits that the MRP might have standing had it pursued a competitive-injury theory. But
it did not, and our duty is to resolve questions actually before us, not those based on speculation. In any event, we
are unpersuaded that the recall exception advantages incumbents facing recall efforts in that they may drum up
support for reelection before primary elections are held and an ultimate challenger is identified. Incumbents often
have an advantage leading up to primaries because potential challengers must first battle it out among themselves,
which is the nature of American politics. And, because their survival is singularly threatened, officeholders subject
to recall are uniquely positioned to drum up support, which is the nature of recalls. Neither is attributable to the
recall exception. Moreover, any 2022 Republican gubernatorial candidate has been able to raise $7,150 from each
donor since the beginning of the general-election cycle, so long as he or she formed a candidate committee, and the
MRP has been able to raise unlimited funds to support its gubernatorial candidate at any time—just like Whitmer’s
committee and the MDP.
12We thus have no need to reach the question raised by Benson and Whitmer’s committee regarding
mootness.

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_______________________________________________________________
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
_______________________________________________________________
CHAD A. READLER, Circuit Judge, concurring in part and concurring in the judgment.
With plaintiff Ronald Weiser having failed to plausibly show that he has been injured by an
asymmetric restriction on his political speech, I concur in that aspect of the majority opinion.
But with respect to plaintiff Michigan Republican Party’s purported injury, the standing analysis
is not as clear cut. To the extent the Michigan Republican Party’s claims also turn on
fundraising limits that are not asymmetric, there is no standing to assert those claims. But had
the Michigan Republican Party approached standing from a slightly different angle, today’s
result may have been different. After all, as the facts of this case reveal, the recall exception
equipped Governor Whitmer and the Michigan Democratic Party with one-sided fundraising
advantages to the tune of $3.5 million. And those advantages are disadvantages to other political
parties, particularly the Michigan Republican Party as it attempts to elect its own candidates.
The familiar rules of standing require a plaintiff to allege (1) an injury-in-fact that is
(2) traceable to the defendant’s conduct, and (3) redressable by the relief sought. TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). Our standing analysis, of course, is framed by
“the specific circumstances of individual situations.” United States ex rel. Chapman v. Fed.
Power Comm’n, 345 U.S. 153, 156 (1953). The context here is a claim that several facially
evenhanded provisions of Michigan campaign finance law are “oddhanded” in effect. See Dart
Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 101 (2014) (Scalia, J., dissenting).
As to Weiser, the majority opinion is correct that Weiser’s alleged injury—asymmetric
contribution limits—is implausible. See Ass’n of Am. Physicians & Surgeons v. FDA, 13
F.4th 531, 543–44 (6th Cir. 2021); see also supra, at 10–12, 14. Like all others who are
politically active in the Wolverine State, Weiser may contribute unlimited funds when
supporting (or opposing) a recall effort and when supporting a political party. Similarly, no one
may contribute more than $7,150 to a Michigan gubernatorial candidate. Mich. Comp. Laws
§ 169.252(1)(a); Supra, at 2 n.1. Due to this symmetrical scheme, Weiser has not plausibly
alleged a “concrete and particularized” injury to himself. Spokeo, Inc. v. Robins, 578 U.S. 330,

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334 (2016) (citation omitted). And as Weiser is the only Republican voter named in the
complaint, the Michigan Republican Party’s invocation of associational standing fails for the
same reason. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
But the standing question is much closer with respect to whether the recall exception
directly injures the Michigan Republican Party. The majority opinion notes that the Michigan
Democratic Party could “collect unlimited funds at any time.” Supra, at 12. From there, the
majority opinion goes on to hold that Governor Whitmer and the Michigan Democratic Party
gained no advantage by operation of Michigan recall law. And, in any event, the majority
opinion reasons, any competitive disadvantage the Michigan Republican Party attributes to the
recall exception is simply in “the nature of recalls” and “American politics.” Supra, at 14 n.11.
I would not brush aside the Michigan Republican Party’s concerns so easily. Although
the Supreme Court has not articulated the precise limits of the doctrine, it has warned that a
campaign finance law may run afoul of the First Amendment if it “magnif[ies] the advantages of
incumbency to the point where they put challengers to a significant disadvantage.” See Randall
v. Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion); cf. Fed. Election Comm’n v. Ted Cruz
for Senate, 142 S. Ct. 1638, 1646–48 (2022) (examining the functional operation of campaign
finance regulations to determine the regulations’ injurious effects on First Amendment activity).
And as things played out here, Michigan’s recall exception conferred fundraising advantages on
the political party (in this case, the Michigan Democratic Party) of the incumbent governor (in
this case, Governor Gretchen Whitmer) that, as a practical matter, were not available to opposing
political parties (in particular, the Michigan Republican Party).
Whether this imbalance amounts to a “significant disadvantage” to the Michigan
Republican Party (and all other non-incumbent parties) deserves consideration. Generally
speaking, under Michigan’s recall laws, the governor and her party appear to stand in far better
position than her rival political party for fundraising purposes. It is not implausible to think that
a governor’s recall opposition campaign enjoys the benefit of putting a face with a campaign, so
to speak: the incumbent governor. And that benefit would seem to exacerbate the pace of
donations to the governor. Let us not forget that, at the very time she is fending off a recall
effort, the governor, as the State’s chief executive, is also acting on matters of state law, matters

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that may well be of interest to potential donors. A contributor might donate on that basis alone.
Perhaps the governor’s recall opposition campaign will also draw contributions from a donor
who would not otherwise contribute to the candidate herself. That situation could come to pass
where a donor contributes to the governor’s anti-recall efforts due to a personal opposition to
recall campaigns in general. Or perhaps a donor who contributed purely due to her support for
the governor at the time of the recall may not, in light of later events, have contributed to the
governor closer to the re-election date, when fundraising is at its peak.
A recall committee, on the other hand, has no individual representative on the ballot.
And as the recall campaign is not enmeshed with an officeholder the way the recall opposition is,
it seems to lack some of the appeal the governor enjoys in soliciting financial support. Nor
would the political party opposite the governor normally have a gubernatorial candidate of their
own at the time of a recall. Michigan holds its primary elections the first week of August in the
last year of the incumbent governor’s term, a point at which a recall effort cannot occur. Mich.
Comp. Laws § 168.951(1). Beyond that, the governor’s political adversaries have only minimal
incentive to support a recall. A successful recall effort, it bears noting, merely replaces the
governor with the lieutenant governor, id. § 168.975g; Mich. Const. art. V, § 26, an individual
who must be the governor’s running mate and a member of her party, Mich. Const. art. V, § 21.
Donations to a recall committee, in other words, are in effect donations to elect the lieutenant
governor.
Now consider the benefits enjoyed by the governor’s political party. Win or lose, the
governor can funnel any remaining recall exception funds to her favored political party. True, a
donor may, at the time of her contribution, expressly designate her recall contribution for return
if the funds remain unspent when the recall cycle concludes. R.1-1, PageID# 21. But the
donor’s interest in supporting the governor suggests that designating a contribution for return is
the exception, not the norm. That was certainly the case here. According to plaintiffs’
complaint, at least 119 donors to Governor Whitmer’s recall opposition campaign contributed
more than the Michigan Campaign Finance Act’s $7,150 limit. And only one donor designated
the contribution for return. Supra, at 12 n.9.

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A non-incumbent political party, on the other hand, may have no relationship to the recall
effort, meaning monies contributed to support the recall would be unlikely to be passed on to that
party. Of course, as the majority opinion observes, in general, Weiser (or anyone else) may
make unlimited contributions directly to his preferred party (in this case, the Republican party),
money that ultimately could be spent to support the party’s gubernatorial candidate. But there
are reasons why individuals might give money to a specific candidate as opposed to a faceless
recall campaign or a party committee. Some have already been noted. Another is that a
contribution directly to the governor might be remembered more by the officeholder than money
given to her party. Yet another is that political realities may depress enthusiasm and thus support
for the recall campaign.
These competitive imbalances become even more pronounced when one considers that
contributions to a recall campaign, both for and against, have no limits, unlike contributions to a
gubernatorial candidate, which are capped at $7,150 during the current election cycle. Mich.
Comp. Laws § 169.252(1)(a); see also supra, at 2 n.1. At the outset, it bears emphasis that the
threshold to initiate a recall cycle is low. As the Michigan Bureau of Elections recently clarified,
although “the mere act of forming and registering a recall committee” does not open the recall
cycle, other acts, such as “soliciting funds, making expenditures, or actively gathering
signatures,” do so, as does submitting a proposed recall petition to the Michigan Board of
Canvassers for approval. Letter from Adam Fracassi, Mich. Bureau of Elections, to Tori Sachs,
Mich. Freedom Fund, 10-11 (Dec. 21, 2021), https://www.michigan.gov/sos/-
/media/Project/Websites/sos/25delrio/MFF_v_Whitmer_File_744164_7.pdf?rev=9446770e0676
4b3bac1b3d93a0b82833&hash=73C55FB1A93AFA14478D0CE1992A877D (last visited Sept.
2, 2022); see Mich. Comp. Laws § 168.951a(3). That low bar, curiously, might even allow for a
nefarious candidate to initiate a recall effort against herself to reap the fundraising benefits. In
any event, the bottom line is that the initiation of a recall, no matter its origin, provides the
governor with a functional means to sidestep the Michigan Campaign Finance Act’s strict limits
on individual contributions. See Mich. Comp. Laws § 169.252. Today’s case offers vivid
examples. In all, at least 119 donors to Governor Whitmer’s recall opposition campaign
contributed more than the $7,150 limit. Documents appended to plaintiffs’ complaint reflect that

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at least five donors gave $250,000 or more apiece—nearly 35 times the individual contribution
limit—while five other donors contributed at least $100,000.
Yes, as the majority opinion points out, the incumbent must disgorge recall exception
funds after the recall cycle concludes. Supra, at 3. But it is hard to see how that bridges any
competitive gap when the incumbent may deposit these funds with her political party. R.1-1,
PageID# 21; Mich. Comp. Laws § 169.245(2). That too was not a hypothetical exercise in this
instance. Of all of the many charitable, civic, and cultural organizations that could have been the
beneficiaries of Governor Whitmer’s excess recall opposition funds, she donated the entire
sum—more than $3.5 million in all—to the political party that nominated her for office, the
Michigan Democratic Party. Gretchen Whitmer for Governor Annual CS, Mich. Dep’t of State,
https://cfrsearch.nictusa.com/documents/519803/details/filing/expenditures?schedule=%2A&cha
nges=0 (last visited Sept. 2, 2022) (disclosing the contribution). Not one penny, it appears, went
to any other organization. See R.1-1, PageID# 21 (authorizing disgorgement of leftover recall
funds to a “tax exempt charitable institution”); see also Mich. Comp. Laws § 169.245(2).
I agree wholeheartedly with the majority opinion that Governor Whitmer did not
“engage[] in a money-laundering operation.” Supra, at 12 (quotation marks omitted). But the
rub here is not any illegal activity—it is the competitive advantages the Governor and her party
achieved through their purported compliance with Michigan’s recall law. Again, that regulatory
scheme allowed Governor Whitmer to receive $3.5 million in individual contributions that the
Michigan Campaign Finance Act would otherwise not allow. And that money seemingly will be
used to further her and her party’s political ambitions, at the expense of the rival Michigan
Republican Party. It seems safe to assume that the Michigan Democratic Party will donate at
least $143,000 (the statutory cap for party contributions to gubernatorial campaigns) of the $3.5
million windfall it received from Governor Whitmer back to her reelection campaign. Mich.
Comp. Laws § 169.252(4). The Michigan Democratic Party may then spend the remainder of
the recall exception funds to support her re-election campaign. See id. Or the Party could spend
some of these monies on down-ballot races, which could indirectly benefit the Governor’s
campaign. Any way you slice it, Secretary Benson’s application of the recall exception

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enhanced the Michigan Democratic Party’s interest in electing its own candidates, at the expense
of other political parties.
Despite these realities, the Michigan Republican Party framed its direct injury in a
different vein. From the start, the Party described its claims as arising from Republican voters’
inability to make campaign contributions on level ground with their Democratic counterparts.
Yet as discussed, that form of challenge has proven difficult to sustain. The Party, I suspect,
could have levied a plausible alternative theory that the recall exception has a pro-incumbent
bent that leads to a competitive disadvantage for challengers and their parties. But plaintiffs’
complaint alleged no facts to support a competitive injury theory save for a passing reference in
one paragraph of the complaint. Nor, other than a single sentence chaperoned by a string cite
footnote, did plaintiffs press this theory on appeal. Pleading the case another way may well have
strengthened plaintiffs’ hand. Cf. Glennborough Homeowners Ass’n v. U.S. Postal Serv., 21
F.4th 410, 414 (6th Cir. 2021) (noting that plaintiffs may forfeit arguments for standing). But as
the case was presented to us, I agree that the Michigan Republican Party’s claims fail to satisfy
Article III’s standing requirements.

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