No. 21-12 

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In The 

Supreme Court of the United States 

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FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

TED CRUZ FOR SENATE and 

RAFAEL EDWARD “TED” CRUZ, 

Appellees. 

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On Appeal From The 

United States District Court 

For The District Of Columbia 

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BRIEF AMICUS CURIAE OF 

INSTITUTE FOR FREE SPEECH 

IN SUPPORT OF APPELLEES 

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DONALD A. DAUGHERTY, JR. 

INSTITUTE FOR FREE SPEECH

1150 Connecticut Avenue, N.W. 

Suite 801 

Washington, DC 20036 

(202) 301-1664 

Facsimile: (202) 301-3399 

ddaugherty@ifs.org 

================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

Interest of Amicus Curiae.................................... 1 

Summary of Argument ........................................ 1 

Argument ............................................................. 2 

 I. A brief explanation of the grounds for summary affirmance will benefit lower courts, 

potential litigants, and the public ............. 2 

 II. This Court should caution against overreliance on Buckley’s soft distinctions and 

emphasize that a court must focus primarily on the real world effect on political 

speech ........................................................ 5 

 III. A brief opinion from this Court will confirm the rigorousness of closely drawn 

scrutiny, as reflected in the District 

Court’s decision ......................................... 7 

Conclusion ............................................................ 16 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

American Commercial Lines, Inc. v. Louisville & 

N. R. Co., 392 U.S. 571 (1968) ................................... 3 

Ariz. Free Enter. Club’s Freedom Club PAC v. 

Bennett, 564 U.S. 721 (2011) ............................. 12, 13 

Buckley v. Valeo, 424 U.S. 1 (1976) ........... 5, 6, 7, 9, 11 

Davis v. FEC, 554 U.S. 724 (2008) .............. 6, 11, 12, 13 

Edelman v. Jordan, 415 U.S. 651 (1974) ...................... 3 

FEC v. Wisc. Right to Life, 551 U.S. 449 (2007) ........ 6, 7 

FCC v. Beach Communications, Inc., 508 U.S. 

307 (1993) ................................................................ 15 

Ga. State Conf. of NAACP v. Georgia, 269 

F. Supp. 3d 1266 (N.D. Ga. 2017) ............................ 11 

Holmes v. FEC, 875 F.3d 1153 (D.C. Cir. 2017) .......... 14 

Lair v. Motl, 873 F.3d 1170 (9th Cir. 2017) ............ 9, 10 

Libertarian Nat’l Comm., Inc. v. FEC, 924 F.3d 

533 (D.C. Cir. 2019) ............................................. 8, 10 

Madsen v. Women’s Health Center, 512 U.S. 753 

(1994) ....................................................................... 14 

Mandel v. Bradley, 432 U.S. 173 (1977) ................... 3, 4 

McConnell v. FEC, 540 U.S. 93 (2003) ........................ 14 

McCutcheon v. FEC, 572 U.S. 185 (2014) ........... passim

Metromedia, Inc. v. City of San Diego, 453 U.S. 

490 (1981) .................................................................. 3 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

New York State Rifle & Pistol Ass’n v. City of 

New York, 140 S. Ct. 1525 (2020) .............................. 4 

Randall v. Sorrell, 548 U.S. 230 (2006) ...................... 13 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 

150 (D.D.C. 2010) ...................................................... 6 

Simon & Schuster, Inc. v. Members of the N.Y. 

State Crime Victims Bd., 502 U.S. 105 (1991) ........ 16 

Thompson v. Hebdon, 140 S. Ct. 348 (2019) ................. 4 

Virginia v. American Booksellers Ass’n, 484 U.S. 

383 (1988) .................................................................. 3 

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 

2292 (2016) .............................................................. 15 

CONSTITUTION, STATUTES, AND RULES

U.S. Const. amend. I ............................... 6, 7, 10, 11, 14 

Bipartisan Campaign Reform Act of 2002, § 304, 

52 U.S.C. § 30116(j) ................................................... 2 

Sup. Ct. R. 37.6 ............................................................. 1 
1 

INTEREST OF AMICUS CURIAE1

 The Institute for Free Speech (“IFS”) is a nonpartisan, nonprofit § 501(c)(3) organization that promotes and protects the First Amendment political 

rights to speech, assembly, press, and petition. In particular, IFS has substantial experience litigating challenges to political speech restrictions, and it represents 

individuals and civil society organizations, pro bono, in 

cases raising First Amendment objections to the regulation of core political activity. 

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SUMMARY OF ARGUMENT 

 This appeal presents the Court with an opportunity to remind an important audience beyond the 

parties to the case, through a brief memorandum 

opinion accompanying summary affirmance, of two 

fundamental principles for campaign finance. First, 

although the distinction between “contributions” and 

“expenditures” in campaign finance law may be a helpful construct, it is not an end in itself; rather, a court 

must maintain its focus on the real world effect of 

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 

curiae certifies that no counsel for a party authored this brief in 

whole or in part, and no party or counsel for a party, or any other 

person besides amicus curiae, its members, or its counsel made a 

monetary contribution intended to fund the preparation or submission of this brief. All parties participating in this litigation 

have received over ten days’ notice of the filing of this brief, and 

have granted written consent to the filing of this brief directly to 

counsel for amicus curiae. 
2 

the restriction at issue on political speech. Second, although less rigorous than strict scrutiny, closely drawn 

scrutiny requires that a court assiduously vet the justifications and evidence offered by the government in 

support of limits on campaign contributions. 

 These two fundamental principles were made 

manifest by the District Court’s decision striking down 

the loan repayment limitation (the “Loan Repayment 

Limit”) contained in 52 U.S.C. § 30116(j), Section 304 

of the Bipartisan Campaign Reform Act of 2002. The 

decision should be summarily affirmed, and plenary 

consideration is not warranted. 

 However, the audience for a summary affirmance 

with no explanation whatsoever would likely be limited to the parties only. A brief memorandum opinion 

reiterating one or both of the two fundamental principles will ensure that the decision holds clear precedential value for lower courts, candidates, legislators, and 

others who are potential parties or otherwise interested in campaign finance law. This, in turn, will reduce the possibility of needless direct appeals to this 

Court in the future. 

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ARGUMENT 

I. A brief explanation of the grounds for summary affirmance will benefit lower courts, 

potential litigants, and the public. 

 The Loan Repayment Limit was, as the District 

Court noted, “a somewhat obscure campaign finance 
3 

restriction.” App. 6a. In addition, appellant the Federal 

Election Commission (the “FEC”) raises issues that are 

insubstantial, and that neither implicate a circuit conflict, Virginia v. American Booksellers Ass’n, 484 U.S. 

383, 392 (1988), nor raise any noteworthy issue, American Commercial Lines, Inc. v. Louisville & N. R. Co., 

392 U.S. 571, 574 (1968). Thus, full plenary review by 

this Court of the District Court’s decision is not warranted, and summary affirmance is appropriate. At 

the same time, a brief explanation from this Court of 

its reasons for affirming will benefit lower courts, future litigants, and others. 

 “When we summarily affirm, without opinion . . . 

we affirm the judgment but not necessarily the reasoning by which it was reached.” Mandel v. Bradley, 432 

U.S. 173, 176 (1977) (citation omitted). Summary affirmances carry some weight, but “they are not of the 

same precedential value as would be an opinion of this 

Court treating the question on the merits.” Edelman v. 

Jordan, 415 U.S. 651, 671 (1974). Thus, “[a]n unexplicated summary affirmance settles the issues for the 

parties,” but may not provide much guidance to anyone 

else. Mandel, 432 U.S. at 176 (citation omitted). Furthermore, summary affirmances must be read with 

care because they “extend only to ‘the precise issues 

presented and necessarily decided’ ” in the actions they 

affirm. Metromedia, Inc. v. City of San Diego, 453 U.S. 

490, 499 (1981) (quoting Mandel, 432 U.S. at 176). 

 Here, the District Court produced a well-reasoned 

decision that exemplifies proper application of the 

closely drawn scrutiny test. However, the decision 

and, more importantly, its reasoning, will receive less 
4 

weight from nonparties if it is summarily affirmed 

without at least some discussion. Mandel, 432 U.S. at 

176 (“Because a summary affirmance is an affirmance 

of the judgment only, the rationale of the affirmance 

may not be gleaned solely from the opinion below.”). 

 To offer clear guidance to others besides the parties, and to avoid the risk of confusing that broader 

audience, some explication is appropriate. A short 

memorandum opinion could identify the primary basis 

for affirming the District Court or include a case cite 

or two signaling which precedent dictated the outcome, 

thereby helping to resolve (and perhaps preempt) future campaign finance litigation. In addition, a brief 

opinion would help to minimize the possibility for 

any disconnect between campaign finance law as announced by this Court and as applied by lower courts, 

as the Court has observed with regard to other constitutional rights. See, e.g., New York State Rifle & Pistol 

Ass’n v. City of New York, 140 S. Ct. 1525, 1527 (2020) 

(Kavanaugh, J., concurring) (expressing “concern that 

some federal and state courts may not be properly applying Heller and MacDonald”); id. at 1544 (Alito, J., 

dissenting) (same); see also Thompson v. Hebdon, 140 

S. Ct. 348, 350 & n.* (2019) (per curiam) (vacating and 

remanding where appeals court “declined to apply” recent Supreme Court precedent for campaign finance 

restrictions). 
5 

II. This Court should caution against overreliance on Buckley’s soft distinctions and 

emphasize that a court must focus primarily on the real world effect on political 

speech. 

 Since Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), campaign finance caselaw has relied heavily on 

that decision’s distinction between contributions and 

expenditures, and the differences in how restrictions 

on each regulatory target are treated under the First 

Amendment. Buckley’s distinctions may serve as useful, heuristic tools for the ultimate purpose of determining when campaign finance restrictions overcome 

the heavy presumption in favor of free political speech. 

But the distinctions are not an end in themselves, and 

they can even lead to confusion at times. Thus, courts 

should guard against an overreliance on them. 

Buckley constructed an elaborate theory based on 

the notion that the speech interests inherent in contributions were weaker than those in expenditures, because contributions were only symbolic “speech by 

proxy” and the contributor was merely expressing his 

or her political support; a specific dollar limit did not 

prevent the contributor from achieving this form of expression. Buckley, 424 U.S. at 20-21. This distinction 

has been criticized, however, see, e.g., McCutcheon v. 

FEC, 572 U.S. 185, 228-29 (2014) (Thomas, J., concurring), and its shortcomings are readily apparent. 

 For example, the Loan Repayment Limit did in 

fact affect political speech, which should be the bottom 
6 

line in any constitutional analysis. Contributions to a 

political campaign promote more expenditures by that 

campaign, which results in more political speech. App. 

19a (acknowledging the “reality that contributions and 

expenditures are often ‘two sides of the same First 

Amendment coin’ ”) (quoting Buckley, 424 U.S. at 241 

(Burger, C.J., concurring in part and dissenting in 

part)). The District Court recognized that, associational rights aside, laws that disincentivize candidates 

from loaning money to their campaigns will result in 

less political speech. App. 19a; see also Republican 

Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 156 (D.D.C.) 

(“To be sure, every limit on contributions logically reduces the total amount that the recipient of the contributions otherwise could spend”), aff ’d without opn., 

561 U.S. 1040 (2010). Simply because a restriction may 

reduce political speech only indirectly, like the Loan 

Repayment Limit did, does not mean that rigorous 

First Amendment scrutiny is not required. 

 The District Court acknowledged the limitations 

of Buckley’s distinctions and focused “on speech interests more generally.” See App. 12a. It recognized that 

in more recent decisions like McCutcheon and Davis v. 

FEC, 554 U.S. 724 (2008), this Court “has emphasized 

the central question of whether and how a challenged 

regulation burdens political speech.” App. 13a. 

 Given the First Amendment’s blunt text (“Congress shall make no law . . . ”), the constitutionality of 

restrictions on political speech should not turn entirely 

on intricate judicial constructs like multifactor analyses 

or balancing tests. See FEC v. Wisconsin Right to Life, 
7 

Inc., 551 U.S. 449, 469 (2007) (citation omitted) (standard of review for challenge to free speech restriction 

“must eschew ‘the open-ended rough-and-tumble of 

factors,’ which ‘invit[es] complex argument in a trial 

court and a virtually inevitable appeal’ ”). The First 

Amendment provides the lodestar for courts to follow 

– namely, political speech must be largely unfettered 

by regulation – and any analysis must begin with that 

premise before delving into whether the challenged 

regulation relates to contributions or expenditures. 

 Lastly, emphasizing the primacy of a regulation’s 

effect on political speech over difficult distinctions between contributions and expenditures helps to simplify the analysis. As with McCutcheon’s confirmation 

that actual quid pro quo corruption or its appearance 

is the sole interest that justifies contribution limits 

consistent with the First Amendment, McCutcheon, 

572 U.S. at 207-08, clarifying the complex law of campaign finance whenever feasible will help to improve 

its understanding by lower courts, potential litigants, 

political candidates, and legislators. 

III. A brief opinion from this Court will confirm 

the rigorousness of closely drawn scrutiny, 

as reflected in the District Court’s decision. 

Buckley’s distinction between expenditures and 

contributions affects whether a regulation is subject to 

strict or closely drawn scrutiny, and the application of 

those standards can complicate the First Amendment 

analysis further. The District Court, however, avoided 
8 

getting lost in the weeds by applying closely drawn 

scrutiny in a thorough and thoughtful manner with its 

primary focus on the Loan Repayment Limitation’s actual effect on political speech. Its decision should serve 

as a model for other courts presented with restrictions 

on contributions. 

 Indeed, the District Court’s decision stands in 

useful contrast to examples of the standard’s misapplication. The D.C. Circuit’s decision in Libertarian Nat’l 

Comm., Inc. v. FEC (“LNC”), 924 F.3d 533 (D.C. Cir.) 

(en banc), cert. denied, 140 S. Ct. 569 (2019), provides 

one such example. In LNC, the court held that, inter 

alia, a two-tiered contribution scheme created by the 

Federal Election Campaign Act – which set separate 

limits on annual contributions to political parties for 

general purposes and for specified purposes (e.g., presidential nominating conventions), which were to be 

kept segregated – did not violate the First Amendment 

because the limits were closely drawn to the government’s anticorruption interest. However, two forceful 

dissents raised serious questions about the majority’s 

application of closely drawn scrutiny. 

 Dissenting in part, Judge Griffith wrote that to 

show alleged corruption-related differences between 

general and segregated contributions justifying the 

separate limits, the government had presented only 

“an ambivalent record.” Id. at 554 (citing McCutcheon, 

572 U.S. at 217). For example, the majority had drawn 

inferences in favor of the government that lacked evidentiary support and had relied on self-serving assertions in the legislative history by representatives of the 
9 

two major parties. Id. at 554-55. Thus, he concluded, 

“the government has not carried its burden of showing 

that the two-tiered scheme is closely drawn to serve 

anticorruption interests.” Id. at 556. 

 In a separate partial dissent, Judge Katsas (joined 

by Judge Henderson) observed that in McCutcheon, 

“the plurality sought to minimize the differences between strict and closely drawn scrutiny . . . in the face 

of a continuing call for strict scrutiny” of contribution 

limits by several Justices dating back to Buckley itself. Id. at 559 (citations omitted). “Given this longstanding debate over whether closely drawn scrutiny 

sets the bar too low, it is quite a stretch to posit that, 

here, it sets the bar too high,” as the government argued. Id.

 Both dissents closely followed McCutcheon, with 

Judge Griffith emphasizing the need for close scrutiny 

of the evidence presented to support restrictions on 

political speech, and Judge Katsas pointing out that 

contribution limits were not subject to “less-thanintermediate scrutiny” and, if anything, closely drawn 

scrutiny was similar in rigor to strict scrutiny, id.

 Another example of the closely drawn standard’s 

misapplication comes from Lair v. Motl, 873 F.3d 1170 

(9th Cir. 2017), where the court held that Montana’s 

campaign contribution limits were closely drawn to 

further the state’s interest in preventing quid pro quo 

corruption.2

 Dissenting, Judge Bea explained that the 

2 Notably, the Lair majority stated repeatedly that to survive closely drawn scrutiny, the statutory limit need only be 
10 

majority failed to recognize that this Court had “narrowed what can constitute a valid important state interest . . . to only the state’s interest in eliminating or 

reducing quid pro quo corruption or its appearance.” 

Id. at 1188. Thus, “[t]he mere prevention of influence 

on legislators by contributors is now not a valid important state interest that could justify campaign contribution limits.” Id. (citations omitted) (emphasis 

original). Further, on close examination of the record, 

Judge Bea found no “evidence of exchanges of dollars 

for political favors – much less for any actions contrary 

to legislators’ obligations of office – or any reason to 

believe the appearance of such exchanges will develop 

in the future.” Id. at 1189. The government had shown 

“nothing more than the trading of influence and access,” which were not sufficient government interests 

and, in fact, were “critical mechanisms through which 

our political system responds to the needs of constituents.” Id. 

 The dissents in LNC and Lair took a hard, cleareyed look at whether the government had carried its 

evidentiary burden, and did not resort to generalized 

concerns about “money in politics” or “unequal electoral playing fields.” The dissents reflect the high level 

of scrutiny that must be employed in determining 

whether restrictions on campaign contributions violate the First Amendment rights of donors or recipients. 

“adequately tailored” to fit the asserted governmental interest. Id. 

at 1172, 1176, 1187. 
11 

 This Court’s clarification that combating quid pro 

quo corruption or its appearance is the only governmental interest that can justify limits on political 

speech, McCutcheon, 572 U.S. at 207-08, may have 

been closely drawn scrutiny’s most significant development since Buckley first announced it. Hewing closely 

to McCutcheon’s approach, App. 10a, the District Court 

maintained its focus on that interest, and thus its decision is more in keeping with recent precedent than 

the majorities in LNC and Lair. Lower courts could use 

some guidance pointing out that the decision below 

represents the correct approach to closely drawn 

scrutiny. A brief memorandum opinion would also 

minimize the risk of confusion that sometimes arises 

surrounding the precedential value to be accorded an 

unexplicated summary affirmance. See, e.g., Ga. State 

Conf. of NAACP v. Georgia, 269 F. Supp. 3d 1266, 1278-

79 n.7 (N.D. Ga. 2017) (citing cases) (noting that in redistricting challenges, three-judge district courts may 

“result[ ] in the slow and incomplete development of a 

cohesive body of law in voting rights cases,” and that 

summary affirmances may leave “gaps where we have 

little or incomplete guidance”). 

 The District Court recognized that loans by candidates to their own campaigns are a form of selffinancing, and the First Amendment allows candidates 

to self-finance without monetary limits. App. 7a. As in 

Davis, any governmental interest in “leveling the playing field” between wealthier candidates who can more 

easily lend to their campaigns and their less wealthy 

opponents did not justify the Loan Repayment Limit. 
12 

This Court has “soundly rejected a cap on a candidate’s 

expenditure of personal funds to finance campaign 

speech.” Davis, 554 U.S. at 738; see also Ariz. Free Enter. 

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 736-

37 (2011). 

 In support of the Loan Repayment Limit’s constitutionality, the FEC analogizes the measure to restrictions on gifts to public officials. FEC Jurisdictional 

Statement at 21. However, the analogy does not hold 

up. An officeholder’s personal assets are never at stake 

when he or she receives a gift, while candidates risk 

their own money when they lend it to their campaigns, 

as there is no guarantee that they will ever be repaid 

(let alone win the election). By “narrowly focus[ing] on 

the repayment of the loan,” the FEC “overlook[ed] the 

reality of how the limit function[ed].” App. 18a. In addition, unlike campaign contributions, gifts have nothing to do with activity that is encouraged by the First 

Amendment – namely, promoting political speech in 

the electoral process. 

 The District Court’s review of the FEC’s proffered 

evidence illustrates the proper application of the 

closely drawn scrutiny standard. The inquiry by the 

District Court – “whether experience under the present law confirms a serious threat of abuse,” App. 31a 

– is straightforward and goes to the heart of the evidentiary matter.3

3 By contrast, the FEC’s citations to the stipulated fact 

that appellees were keenly motivated to challenge the Loan 
13 

 The specter of quid pro quo corruption that the 

FEC claimed unrestricted loan repayments presented 

simply did not comport with the record. For example, 

the District Court noted that although many states 

impose no loan repayment limits whatsoever, the FEC 

could not identify a single instance of quid pro quo 

corruption due to a lack of limits in those states. App., 

23a-24a & n.7. The absence of examples of the corruption warned of by the FEC severely undermined its 

position. See McCutcheon, 572 U.S. at 209 n.7 (“The 

Government presents no evidence concerning the circumvention of base limits from the 30 states with base 

limits but no aggregate limits.”). 

 Thin evidence like that presented by the FEC in 

support of the Loan Repayment Limits – e.g., academic 

articles that remain ambiguous on the factual issue 

relevant to campaign finance law, media conjecture, 

and self-serving polls commissioned by the government, App. 27a-28a – cannot hold up under close 

scrutiny. Similarly, although courts “extend[] a measure of deference to the judgment of the legislative 

body that enacted the law” limiting contributions, 

Davis, 554 U.S. at 737, they should not remain supine 

in the face of the legislative record, and have “no alternative to the exercise of independent judicial judgment as a statute reaches [the] outer limits” of 

permissible regulation, Randall v. Sorrell, 548 U.S. 

230, 249 (2006); see also Ariz. Free Enter. Club, 564 U.S. 

at 753-54 (while “the wisdom of ” a campaign finance 

Restriction Limit, FEC Jurisd’l Stmt. at 4, 19, have no bearing on 

whether the limit violates appellees’ constitutional rights. 
14 

statute “is not our business[,] . . . determining whether 

laws governing campaign finance violate the First 

Amendment is very much our business”). Considering 

the dearth of meaningful evidence, the District Court 

properly gave little weight to senatorial suppositions 

in the legislative history about the effects of the Loan 

Repayment Limit. App. 27a-28a. 

 As the District Court recognized, base limits on 

contributions already exist to prevent quid pro quo corruption. App. 34a. Any additional layer of contribution 

limits on top of base limits must be justified with a separate showing of how it “ ‘serve[s] the interest in preventing the appearance or actuality of corruption.’ ” Id. 

(quoting Holmes v. FEC, 875 F.3d 1153, 1161 (D.C. Cir. 

2017) (en banc)) (cleaned up). In a brief memorandum 

decision, this Court should confirm that McCutcheon 

requires additional justification for “prophylaxis upon 

prophylaxis” regulations like the Loan Repayment 

Limit. App. 34a & n.10. 

 Closely drawn scrutiny may be somewhat “less 

rigorous” relative to strict scrutiny, see McConnell v. 

FEC, 540 U.S. 93, 137 (2003), but the District Court’s 

decision illustrates that proper judicial review of contribution limits is nonetheless extremely rigorous as 

an objective matter. Although this Court has described 

intermediate scrutiny generally as “midway between 

the ‘strict scrutiny’ demanded for content-based regulation of speech and the ‘rational basis’ standard that 

is applied . . . to government regulation of nonspeech 

activities,” Madsen v. Women’s Health Center, 512 U.S. 

753, 796 (1994), closely drawn scrutiny specifically 
15 

resembles strict scrutiny much more closely than mere 

rational basis review. Both strict and closely drawn 

scrutiny can only be justified by a governmental interest in preventing quid pro quo corruption, and both 

turn on the fact-intensive issue of whether a restriction 

“fits” the asserted risk. By contrast, a court need not 

even look to the evidentiary record for rational basis 

review. See FCC v. Beach Communications, Inc., 508 

U.S. 307, 315 (1993) (“a legislative choice is not subject 

to courtroom factfinding and may be based on rational 

speculation unsupported by evidence or empirical 

data”). 

 In fact, McCutcheon hinted that the boundaries 

between the standards of review for campaign finance 

were somewhat permeable: 

[R]egardless whether we apply strict scrutiny 

or Buckley’s “closely drawn” test, we must assess the fit between the stated governmental 

objective and the means selected to achieve 

that objective. Or to put it another way, if a 

law that restricts political speech does not 

“avoid unnecessary abridgment” of First 

Amendment rights, it cannot survive “rigorous” review. 

572 U.S. at 199 (citations omitted). In fact, tiered levels 

of means-end scrutiny may not be appropriate for determining whether any fundamental constitutional 

rights have been violated. See Whole Woman’s Health 

v. Hellerstedt, 136 S. Ct. 2292, 2328 (2016) (Thomas, J., 

dissenting) (recognizing “tendency [of courts] to relax 
16 

purportedly higher standards of review for lesspreferred rights”); Simon & Schuster, Inc. v. Members 

of the N.Y. State Crime Victims Bd., 502 U.S. 105, 124 

(1991) (Kennedy, J., concurring) (strict scrutiny “has 

no real or legitimate place when the Court considers 

the straightforward question [of ] whether the State 

may enact a burdensome [content-based speech] restriction”). The Constitution itself, of course, sets forth 

no standards of review and, if pushed too hard, the different levels of campaign finance scrutiny collapse onto 

themselves. A more categorical approach that focuses 

on the scope of the right to political speech and compares it to the challenged restriction, may be warranted. 

 Although any change in this Court’s campaign finance jurisprudence would require plenary consideration, which is not warranted here, summary affirmance 

with a brief memorandum opinion offers a relatively 

painless way to provide needed direction beyond the 

parties to this case. This Court will doubtless invest 

some time reviewing the FEC’s jurisdictional statement, and it should take the short, additional step of 

sharing its findings with the public through a brief yet 

instructive opinion. 

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CONCLUSION 

 For the foregoing reasons, IFS respectfully requests that this Court issue a brief opinion setting 
17 

forth its reasons for summarily affirming the District 

Court’s decision. 

DATED: August 5, 2021 

Respectfully submitted, 

DONALD A. DAUGHERTY, JR. 

INSTITUTE FOR FREE SPEECH

1150 Connecticut Avenue, N.W. 

Suite 801 

Washington, DC 20036 

(202) 301-1664 

Facsimile: (202) 301-3399 

ddaugherty@ifs.org 

Counsel for Amicus Curiae