, )

)

v. )

) Civil No. 1:12-cv-01451-JEB-JRB-RLW

Federal Election Commission, )

)

)

Defendant. )

)

PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

On September 28, 2012, this Court issued an opinion and order in

McCutcheon v. FEC, Civil No. 12-1034, rejecting those plaintiffs’ facial challenge

to the aggregate limits on contributions to candidate committees. This Court

subsequently ordered Plaintiff Virginia James to show cause why her suit should

not be dismissed for the reasons set forth in that opinion.

There are three principal reasons why the McCutcheon decision does not

control here.

First, and most clearly, that ruling relied entirely on the “anti

circumvention” rationale announced in Buckley v. Valeo, 424 U.S. 1, 38 (1976).

1
substa

t

a

y reduce the possibility that her contributions could be used to

circumvent the base limits. Ms. James will contribute only directly to candidate

committees, and not to the various entities, such as parties, that both the SupremeCourt and this Panel viewed as potential conduits for circumvention. See

McCutcheon at 9-10.

Second, the McCutcheon plaintiffs brought a facial challenge to the

aggregate limit on contributions to candidate committees. Ms. James brings a

narrow as-applied challenge, one which accepts both the base limitation and the

overall limitation imposed by Congress. In such circumstances, as-appliedchallenges are not foreclosed by a prior ruling on a facial challenge. Wis. Right to

Inc. v. FEC, 546 U.S. 410, 411-412 (2006) (per curium) (“WRTL 1”) (“In

upholding [a section of BCRA] against a facial challenge, we did not purport toresolve future as-applied challenges.”).

Third, even if this Panel did view McCutcheon as raising merely an as

applied challenge, the differences between that case and this are extensive.

McCutcheon challenged the aggregate limits to party committees; Ms. James

specifically does not wish to contribute to party committees. McCutcheon involved

2
y 

, 

g 

y poss

b

ty o

c

cu

ve

t

g the

limits on such contributions.’ McCutcheon asked this Court to eliminate all

aggregate limits, potentially allowing individuals to contribute millions of dollars

in each election cycle. McCutcheon at 3 n. 1 (noting that an estimate of $3.5

million for individual contributions was, in fact, conservative). Ms. James specifies

that she does not intend to give more than the $117,000 Congress already allows. 2

She challenges only the distribution ofthose funds, and does so in a way that

would lessen the possibility of circumvention.

I. The McCutcheon opinion does not address Ms. James’s argument.

This Court upheld the aggregate limit on contributions to candidate

committees on pages 9 and 10 of its Memorandum Opinion. It explicitly noted that

it did so based on the “ability of aggregate limits to prevent evasion ofthe base

limits.” McCutcheon at 9. Ms. James’s challenge, however, is premised on the fact

that her desired activities do not implicate this anti-circumvention concern.

I James V.ComplaintJ 13,21, ECFNo. 1.

2 James V.Complaint ¶J 20, 23.

3
g

p

committees likely to contribute to that candidate, or huge contributions tothe candidate’s politicalparty. “Buckley, 424 U.S. at 38 (emphasis added).

The McCutcheon case presented just such a situation: it sought to lift the aggregatelimits on non-candidate committees, precisely the entities Buckley identifies as

potential conduits for unearmarked contributions.

This Court’s opinion in McCutcheon therefore appropriately keyed its

analysis to Buckley ‘s concerns. Specifically, it noted a telling hypothetical: what if

an individual contributes $500,000 to a joint fundraising committee, which was

then funneled through party committees and spent on coordinated expenditures in

support of a particular candidate? McCutcheon at 9-10. In such a situation, thesupported candidate would “know precisely where to lay the wreath of gratitude.”

Id. at 10. Moreover, despite the transaction costs inherent in such a scheme, “it is

not hard to imagine a situation where the parties implicitly agree to such a system”

because, in part, ofthe lack of “meaningful separation between the national party

committees and the public officials who control them.” Id. Consequently, this

Court found that the aggregate limits were justified.

4
g

gg

g

argues that a law that forbids certain direct contributions to candidates, while

allowing those same funds to go to PACs and parties which may, in turn,contribute to those same candidates, cannot withstand constitutional scrutiny. The

McCutcheon opinion explains the dangers of circumvention, and the role of party

committees and PACs in increasing that danger. Such reasoning applied to

McCutcheon, with its particular plaintiffs: a party committee and an individual

wishing to entirely remove aggregate limits. But it does not apply to Ms. James.

II. McCutcheon challenged the candidate sub-aggregate limit facially,

but Ms. James makes an as-applied challenge.

McCutcheon challenged the “biennial limit on contributions to candidate

committees (currently $46,200 per biennium) at 2 U.S.C. § 441a(a)(3)(A) as

unconstitutional because it lacks a constitutionally cognizable interest to justify

it.” 3 McCutcheon sought “a declaratory judgment holding the biennial contributionlimit at 2 U.S.C. § 441a(a)(3)(A) unconstitutional because the provision lacks a

McCutcheon V.Compl. ¶ 122, ECF No. 1.

5
g

its decision. To prevail in a facial challenge, the plaintiffs must show that no set of

circumstances exists under which the law would be valid. Reno v. Flores, 507 U.s.

292, 301 (1993) (citing United States v. Salerno, 481 U.S. 739, 745 (1987) and

Schall v. Martin, 467 U.S. 253, 268 n. 18 (1984)). Facial challenges go beyond the

specific facts ofthe claimant to examine “whether, given all of the challenged

provision’s potential applications, the legislation creates such a risk of curtailing

protected conduct as to be constitutionally unacceptable ‘on its face.” Sanjour v.

EPA, 56 F.3d 85, 92 n. 10 (D.C. Cir. 1995).

Here, the Court examined the aggregate limit itself, and made use of

hypothetical situations under which the aggregate limits could be upheld. For

example, the Court posited that an individual could give $500,000 in a single check

to a joint fundraising committee, triggering Buckley’s anti-circumvention interest.

McCutcheon, slip op. at 9. Furthermore, the Court rejected McCutcheon’s

arguments that the limits were unconstitutionally low and unconstitutionally

overbroad. Id. at 10. In so doing, the Court used analysis consistent with a facial

Id. Prayer for ReliefJ 10.

Id. Prayer for Relief 12.

6
g

, 

p

p

y 

a

statute was upheld facially does not protect it from an as-applied challenge. WRTL

I, 546 U.S. at 411-412. Even though McConnell v. FEC, 540 U.S. 93 (2003),

upheld the Bipartisan Campaign Reform Act (“BCRA”), Pub.L. 107-155, 116 Stat.

81(2002), § 203, that decision did not preclude subsequent as applied challenges

to portions of BCRA. WRTL I, 546 U.S. at 411-412; FEC v. Wis. Right to Life,

Inc., 551 U.S. 449, 456 (2007) (“WRTL IL’).

Indeed, the plaintiffs in WRTL I went on to succeed in their as-applied

challenge in WRTL II. See WRTL II, 554 U.S. at 482. While the McConnell

plaintiffs could not, on their record, “carr[y] their heavy burden of proving” that

BCRA was facially overbroad, the Court nonetheless turned its attention to the

specific facts presented by WRTL in their as-applied challenge. WRTL II, 551 U.S.

at 456. Ultimately the Court found that, as applied to the specific ads written by

WRTL, BCRA was unconstitutional. Id. at 481.

This case presents a similar situation. The McCutcheon plaintiffs did not

succeed in demonstrating that the limits on aggregate contributions to candidates

were either facially unconstitutional or “too low.” Nor did they plead specific facts

7
g

§ 

(

)(

)(

) 

e

claims, t

e decision

in McCutcheon does not prevent Ms. James from presenting her specific case, on

an as-applied basis, to this Court. Just as McConnell involved a general attack on

BCRA, while WRTL involved specific ads with specific language, so McCutch eon

represented a facial attack on BCRA’s aggregate limits, while this case presents

specific contributions with specific limits.

III. Even ifMcCutcheon is viewed as an as-applied challenge to the

aggregate limit on contributions to candidate committees, the

facts in that case differ significantly from the facts presented here.

Generally, as applied challenges are fact-driven. In as applied challenges,

different facts can yield different results, even where the same statue is challenged.

To the extent, if any, that Mr. McCutcheon challenged the candidate sub-aggregatelimit as-applied, the facts in his case are significantly different from those

presented here.

Mr. McCutcheon intended to give $54,400 to Federal candidates in the 2012

election cycle. 6In the next biennium, he intended to give an amount north of

6 McCutcheon V.Complaint ¶ 27, 28.

8
y

), 

. McCutcheon plainly

intended to exceed the $117,000 overall cap on political contributions. 8Pointedly,

McCutcheon sought to donate $25,000 each to the Republican National

Committee, the National Republican Senatorial Committee, and the National

Republican Congressional Committee. 9

Furthermore, the McCutcheon plaintiffs included both a contributor and a

political party, the Republican National Committee (“RNC”). Indeed, the RNC

asserted a right to receive the contributions from Mr. McCutcheon. 1°In connection

thereto, McCutcheon challenged the limits to national parties and non-candidate

committees. 11Therefore, McCutcheon challenged, by implication, the biennial

aggregate contribution limit of $117,000.12 McCutcheon at 4.

71d. ¶32.

81d. ¶37, 38.

91d. ¶J34, 35.

‘°Id. ¶78.

“Id.’JJ85, 107, 113.12 McCutcheon sought to contribute $54,400 to candidates and $97,000 to non

candidate committees, totaling $151,400.

9
g

g 

aggregate limit of $117,0OO.’ She merely wishes to associate one-on-one with

candidates and not be forced to associate with groups or organizations simply to

contribute up to the full biennial aggregate limits.’ 6

With different facts comes a different analysis. Ms. James and Mr.

McCutcheon include different types of parties and are challenging different aspects

ofthe aggregate limits. Most importantly, Ms. James’s contributions would be (1)

limited, and (2) not capable of creating an anti-circumvention concern. Therefore,

even if the McCutcheon verified complaint may be read as asserting an as-applied

challenge, and even if this Panel intended to address such a claim in its opinion,

Ms. James is not similarly situated to the McCutcheon plaintiffs. She consequently

deserves full and separate consideration of her claims.

13 James V.Compl. ¶ 19; James Opp’n to Designation as a Related Case, p. 2, ECF

No.9.

14 James V.Compl. ¶ 11. 15 James V.Compl. ¶J 20, 23; James Opp’n to Designation as a Related Case, pp.

2-3.

16 James V.Compl. ¶J 13, 21, 23; James Opp’n to Designation as a Related Case,

pp. 2-3.

10
pp

g

y 

brought even if a facial challenge to the same statute previously failed. Finally, the

facts in McCutcheon differ significantly from those posed by this case, so Ms.

James is not similarly situated to the McCutcheon plaintiffs. Therefore, for the

forgoing reasons, this case should not be dismissed for the reasons set forth in

McCutcheon.

Plaintiff hastens to add that the election in which Ms. James wishes to

participate in less than one month away. Consequently, she requests that this Court

schedule a hearing on her claims for the earliest possible time, so that her claims

may be heard while there is still time for her to exercise her rights.

Respectfully submitted this 9th day of October, 2012.

Is! Allen DickersonAllen Dickerson

DCBarNo. 1003781

Tyler Martinez*

Anne Marie Mackin*

Center for Competitive Politics

124 West Street South,

Suite 201

11
12
documents to be filed electronically using the CM/ECF system, causing notice to

be sent to the parties listed below:

Adav Noti anotifec.gov

Counselfor Defendant, FEC

s/ Allen Dickerson

Allen Dickerson

Counselfor Plaintiff