SHAUN MCCUTCHEON 

AND

REPUBLICAN NATIONAL COMMITTEE,

Plaintiffs-Appell

v. 

FEDERAL ELECTION COMMISSION, Defendant-Appel

On Appeal from the United States District Cour

for the District of Columbia 

BRIEF OF THE NATIONAL REPUBLICAN 

SENATORIAL COMMITTEE AND NATIONA

REPUBLICAN CONGRESSIONAL 

COMMITTEE SUPPORTING

PLAINTIFFS-APPELLANTS

Jessica Furst Johnson 

General Counsel 

National Republican 

Congressional Committee 

310 First Street, SE 

Washington, DC 20003 

Megan L. Sowards 

General Counsel 

National Republican 

Senatorial Committee 

425 Second Street, NE 

Washington, DC 20002 

May 10, 2013

Jason Torchinsky 

Counsel of Record

Thomas J. Josefiak 

J. Michael Bayes 

Holtzman Vogel Josefiak 

45 North Hill Drive, Suite 

Warrenton, VA 20186 

(540) 341-8808 

(540) 341-8809 

jtorchinsky@hvjlaw.com 

Counsel for Amici Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
CORPORATE DISCLOSURE ...................................

INTERESTS OF AMICI CURIAE ............................

SUMMARY OF ARGUMENT ...................................

ARGUMENT .............................................................

I. THE AGGREGATE LIMITS ON 

CONTRIBUTIONS TO NATIONAL 

PARTY COMMITTEES IMPOSE A 

SEVERE AND UNCONSITUTIONAL 

BURDEN ..................................................

A. Taken Together, The Base Limits 

And Aggregate Limits Operate In 

Manner That Unconstitutionally 

Infringes The First Amendment 

Rights Of Candidates, Political 

Parties, And Donors ......................

B. The Aggregate Limits Do Not 

Satisfy Or Serve Any AntiCorruption Interest, And Serve 

Only An Anti-Circumvention 

Interest Already Comprehensively 

Met By Other Prohibitions And 

Restrictions ....................................
unrelated to preventing 

circumvention .....................

2. The 1976 Amendments to 

FECA included 

comprehensive anticircumvention protections 

that addressed the Buckley

Court’s concerns regarding 

earmarking without 

attribution and political 

committee affiliation and 

proliferation ........................

3. Reviewing Buckley in light 

the 1976 Amendments to 

FECA demonstrates no 

continuing constitutional 

justification for upholding t

aggregate limits ..................

II. A NATIONAL PARTY COMMITTEE’S 

RELATIONSHIP WITH ITS 

CANDIDATES IS NOT SHAPED BY TH

AGGREGATE LIMITS, AND OTHER 

PROVISIONS OF FECA GOVERN THE 

DIRECT INTERACTIONS OF PARTIES 

AND CANDIDATES ................................
Direct Contribution Limit, Not By 

The Aggregate Limits ...................

B. A National Party Committee Is 

Limited In The Amount It May 

Spend In Coordination With A 

Candidate By A Direct Limit On 

Party Coordinated Expenditures, 

And Not By The Aggregate 

 Limits .............................................

C. Candidates May Not Contribute 

Funds To Other Candidates 

Without Limitation, And 

Candidate-To-Candidate 

Contributions Generally Originate 

From Small Numbers Of 

Officeholders ..................................

III. JOINT FUNDRAISING COMMITTEES 

ARE NOT A MEANS OF 

CIRCUMVENTING CONTRIBUTION 

LIMITS .....................................................

A. A Joint Fundraising Committee Is 

A Highly Regulated Method Of 

Fundraising That Permits A Dono

To Efficiently Contribute To 

Multiple Political Committees 

Simultaneously ..............................
Historically Collected Contributio

Up To The Applicable Limit For 

Each Participating Committee .....

CONCLUSION ..........................................................
Ariz. Free Enter. Club's Freedom Club PAC v.

Bennett, 564 U.S. ____, 131 S. Ct. 2806 (2011) .... 15

Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) .

Associated Press v. U.S., 326 U.S. 1 (1945) ..............

Austin v. Mich. State Chamber of Commerce, 494 

U.S. 652 (1990) ..........................................................

Bartnicki v. Vopper, 532 U.S. 514 (2001) .................

Buckley v. Valeo, 424 U.S. 1 (1976) .................... pas

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

Citizens United v. FEC, 558 U.S. 310 (2010) . 15, 19

Davis v. FEC, 554 U.S. 724 (2008) ....................... 15

Democratic Senatorial Campaign Comm. v. FEC,

139 F.3d 951 (D.C. Cir. 1998) ...................................

FEC v. Colo. Republican Fed. Campaign Comm.

(Colorado II), 533 U.S. 431 (2001) ...................... 2, 9

FEC v. National Republican Senatorial Comm., 96

F.2d 1471 (D.C. Cir. 1992) ........................................

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) 
Nixon v. Shrink Mo. Govt PAC, 528 U.S. 377 (U.S. 

2000) ..........................................................................

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) .....

Roth v. U.S., 354 U.S. 476 (1957) .............................

STATUTES 

2 U.S.C. § 431(14) ......................................................

2 U.S.C. § 439a(a)(4) .................................................

2 U.S.C. § 441a(a)(1)(B) ............................................

2 U.S.C. § 441a(a)(2)(A) ............................................

2 U.S.C. § 441a(a)(3)(B) ............................................

2 U.S.C. § 441a(a)(4) .................................................

2 U.S.C. § 441a(a)(5) ............................................. 12

2 U.S.C. § 441a(a)(8) ............................................. 12

2 U.S.C. § 441a(d)(3)(A), (B) .....................................

2 U.S.C. § 441a(h) .....................................................

2 U.S.C. § 441f ...........................................................

2 U.S.C. § 441i(a)(1) ..................................................
Federal Election Campaign Act, Amendments of 

1976, Pub. L .No. 94-283, 90 Stat. 475 (1976) ........ 6

ADMINISTRATIVE REGULATIONS 

11 C.F.R. § 100.5(g)(1)...............................................

11 C.F.R. § 102.17 .....................................................

11 C.F.R. § 102.17(a)(1) ............................................

11 C.F.R. § 102.17(c)(1) .............................................

11 C.F.R. § 102.17(c)(2) .............................................

11 C.F.R. § 102.17(c)(4) .............................................

11 C.F.R. § 102.17(c)(4)(i) .........................................

11 C.F.R. § 102.17(c)(6)(i) .........................................

11 C.F.R. § 102.17(c)(8)(i) – (ii) .................................

11 C.F.R. § 109.33 .....................................................

11 C.F.R. § 110.3(a)(1) ..............................................

ADMINISTRATIVE OPINIONS, 

RULEMAKINGS, AND NOTICES 

FEC Advisory Opinion 1977-08 ................................

FEC Advisory Opinion 1977-14 ................................
FEC Advisory Opinion 1979-35 ................................

FEC Advisory Opinion 1986-31 ................................

FEC Notice of Price Index Adjustments for 

Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 Fed. 

Reg. 8530, 8532 (Feb. 6, 2013) ................................ 7

FEC Price Index Adjustments for Expenditure 

Limitations and Lobbyist Bundling Disclosure 

Threshold, 77 Fed. Reg. 9925 (Feb. 21, 2012) ...... 26

FEC Transmittal of Regulations to Congress on 

Transfer of Funds; Collecting Agents, Joint 

Fundraising, 48 Fed. Reg. 26,296, 26,298 (June 7, 

1983) ..........................................................................

OTHER AUTHORITIES 

Campaign Legal Center Press Release, Reform 

Groups Urge Congress to Close Gaping Disclosure 

Loopholes (May 2, 2013), 

http://www.campaignlegalcenter.org/index.php? 

option=com_content&view=article&id=2110:may-2

2013-reform-groups-urge-congress-to-close-gapingdisclosure-loopholes&catid=63:legal-center-pressreleases&Itemid=61 ..................................................
24mSummary.shtml ................................................

FEC’s Opp’n to Pl.’s Mot. for Prelim. Inj., 

McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 

2012) (No. 12-cv-1034) .................................... 10, 16

Alex Knott, Politicians Create Record Number of 

Joint Fundraising Committees, Roll Call (Sept. 17, 

2010), http://www.rollcall.com/news/ 

-49934-1.html ........................................................ 37

Mem. of Campaign Legal Ctr. and Democracy 21 A

Amici Curiae in Opp’n to Pl.’s Mot. for a Prelim. In

McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 

2012) (No. 12-cv-1034) ........................................ pas

Joseph Morton, Kerrey, Dems Set Up Joint 

Fundraising Committee, Omaha World-Herald (Ap

11, 2012), http://www.omaha.com/article/20120410/ 

NEWS01/120419949/0 ..............................................

Al Shaw & Kim Barker, PAC Track: What and 

Where Are the Super PACs Spending?: Top 

Contributors To Super PACs, ProPublica (Dec. 7, 

2012), http://projects.propublica.org/ 

pactrack/#contributions=all ......................................
Committee and the National Republic

Congressional Committee are both unincorporat

associations, so no corporations are involved. 
committees whose activities and methods 

fundraising are directly impacted by the provisio

of law at issue in this matter. 

The National Republican Senator

Committee (“NRSC”) is the principal nation

political party committee focused on electi

Republican candidates to the United States Sena

Members of the NRSC include all incumbe

Republican Members of the United States Sena

The Chairman of the NRSC is elected every tw

years by the Republican Senate caucus, a

members are appointed by the Senate Republic

Conference Committee. The NRSC is register

with the Federal Election Commission (“FEC”) as 

“political committee,” and is recognized by the FE

as a national political party committee. 

 The National Republican Congression

Committee (“NRCC”) is the principal nation

political party committee focused on electi

Republican candidates to the United States House 

Representatives. Members of the NRCC include 

incumbent Republican Members of the United Stat

House of Representatives. The NRCC is governed 

 

1 No counsel for a party authored this brief in whole or 

part, and no counsel or party made a monetary contributi

intended to fund the preparation or submission of this bri

No person other than amici curiae, their members, or th

counsel made a monetary contribution toward 

preparation or submission. Counsel for the parties receiv

timely notice of the intent to file this brief and ha

consented to its filing. 
FEC as a political committee, and is recognized 

the FEC as a national political party committee. 

Both amici have participated in numero

campaign finance cases in the course of the

respective histories, and both are subject 

regulation as national political party committees 

the FEC.2

 

2 See, e.g., FEC v. Colo. Republican Fed. Campaign Comm

533 U.S. 431 (2001) (National Republican Congression

Committee as amicus curiae); Democratic Senator

Campaign Comm. v. FEC, 139 F.3d 951 (D.C. Cir. 199

(National Republican Senatorial Committee as amic

curiae); FEC v. National Republican Senatorial Comm., 9

F.2d 1471 (D.C. Cir. 1992). 
contribution limits (the aggregate limits) should 

held unconstitutional. Based on this Cour

precedent, there is no cognizable government

interest that adequately justifies the imposition 

the aggregate limits on either donors or the politic

committees that operate subject to those limits. T

aggregate limits challenged in this litigation impo

a severe burden on political parties, candidates, a

donors without constitutional justification. T

aggregate limits were never intended to serve 

independent anti-corruption interest, nor have th

operated in such fashion. Rather, the origin

aggregate limit was implemented as an an

circumvention mechanism before the Feder

Election Campaign Act of 1971 was amended 

response to Buckley v. Valeo. The aggregate lim

cannot withstand constitutional scrutiny in light 

these post-Buckley amendments, the subseque

adoption of significant revisions to the over

structure of the aggregate limits, and the prohibiti

on non-federal fundraising activities by nation

political party committees. 

In this brief, amici also note for the Court th

the legal nature of a candidate’s relationship wi

the national party committees is not shaped 

ultimately controlled by the aggregate limi

Specifically, the party coordinated expenditu

limitations and direct contribution limits fro

national party committees to their candidates a

the operational limitations that shape th

relationship. Additionally, while much has be

made of the possibility of using candidate-
strictly limited, and existing anticircumventi

provisions eliminate the possibility of using su

contributions as a means of circumventing the ba

limits. 

Finally, as organizations with significa

experience in joint fundraising, amici bring to t

Court’s attention the highly regulated process 

creating and operating a joint fundraisi

committee. The extensive operational requiremen

of a joint fundraising committee are outlined 

Federal Election Commission regulations, priva

agreements between the parties, and pub

disclaimers, all of which make plain that the ba

contributions limits to candidates must be strict

observed by a joint fundraising committee. 

These several considerations demonstra

that the aggregate limits at issue here are n

constitutionally justified, and should be held 

violate the First Amendment. 
CONTRIBUTIONS TO NATIONAL 

PARTY COMMITTEES IMPOSE A 

SEVERE AND UNCONSTITUTIONAL 

BURDEN 

The Federal Election Campaign Act of 197

as amended, (“FECA”) provides that “[t]he ter

‘national committee’ means the organization whic

by virtue of the bylaws of a political party, 

responsible for the day-to-day operation of su

political party at the national level, as determined 

the [Federal Election] Commission.” 2 U.S.C. 

431(14). The Republican and Democratic Parti

each maintain three organizations that qualify 

national party committees under FECA: t

Republican National Committee (“RNC”); t

Democratic National Committee (“DNC”); t

National Republican Senatorial Committ

(“NRSC”); the Democratic Senatorial Campai

Committee (“DSCC”); the National Republic

Congressional Committee (“NRCC”); and t

Democratic Congressional Campaign Committ

(“DCCC”). 

Buckley v. Valeo, 424 U.S. 1, 38 (1976), uphe

the original FECA’s $25,000 aggregate federal fun

contribution limit to all federal committees. Th

single aggregate limit had no application to no

federal (that is, state-regulated) funds, whi

national party committees later raised and spen

Following Buckley, Congress amended FECA 

impose restrictions on earmarking contributions a

include rules designed to prevent the proliferation 
90 Stat. 475, 48788 (1976). In 2002, the Bipartis

Campaign Reform Act of 2002, Pub. L. No. 107-15

116 Stat. 81, 101-03 (2002) (“BCRA”), prohibit

national party committees from raising a

spending non-federal dollars altogether, and impos

the current aggregate limits.3 After nearly a deca

of operating under the aggregate limits, t

impacted First Amendment rights of dono

candidates and political party committees are no

squarely before this Court. 

A. Taken Together, The Base Limits 

And Aggregate Limits Operate In 

Manner That Unconstitutionally 

Infringes The First Amendment 

Rights Of Candidates, Political 

Parties, And Donors 

 During the 2013-2014 election cycle, 

individual donor may contribute up to $32,400 p

calendar year to a national party committee. 

 

3 Prior to the adoption of BCRA, all six national pa

committees of the Republican and Democratic part

regularly raised and spent non-federal dollars. Thus, wh

the base and aggregate limits restricted the amount 

federal funds that the party committees could raise, th

could still fund their non-federal activities with non-fede

dollars that were not subject to the federal base a

aggregate limits. Following BCRA’s adoption, however, t

national party committees were prohibited from raising 

spending non-federal dollars for any activities, see 2 U.S

§ 441i(a)(1), meaning that all party activities, wheth

federal or non-federal in nature, must be funded w

strictly limited federal funds. 
Disclosure Threshold, 78 Fed. Reg. 8530, 8532 (Fe

6, 2013) [hereinafter 2013 FEC Price Ind

Adjustments]. Under the base contribution limits

party supporter could contribute a combined $97,2

per year to the three national committees of his 

her preferred party or, conceivably, $194,400 to 

six. The aggregate limits, however, prohibit this. 

With the current aggregate limits in pla

this same hypothetical party supporter is limited 

contributing only $74,600 to all political par

committees and political action committees (PAC

during the two-year, 2013-2014 election cycle. 

U.S.C. § 441a(a)(3)(B); 2013 FEC Price Ind

Adjustments, 78 Fed. Reg. at 8532. If a don

wishes to support the national party committees 

the fullest extent possible under the law, he or s

must forego supporting any state party committe

or PACs during the applicable two year period. T

aggregate limits permit a donor to support o

party’s three national committees in equal amoun

of approximately $24,866 per committee over tw

years, or approximately $12,433 per committee p

year. A donor who wishes to support all thr

national party committees of either the Republic

or Democratic Party, in roughly equal amoun

cannot come close to the allowable base limit as 

result of the aggregate limits. Furthermore, as 

result of this donor’s support of the party’s nation

committees, he or she is legally precluded fro

financially supporting any of the party’s sta

committees, or any of the thousands of acti

independent PACs (excluding the so-called “Sup
subject to either the base or aggregate limits). 

The additional constraints that the aggrega

limits place on a donor’s ability to support t

national party committees come at a serious co

The three national committees serve very differe

functions. The NRSC, for instance, provides suppo

and assistance to current and prospecti

Republican candidates for the U.S. Senate in are

of budget planning, election law complian

fundraising, communications tools and messagin

research and strategy. The NRCC performs t

same function for Republican candidates to the U

House of Representatives. The RNC serves yet 

different function within the Republican Party 

namely, it organizes the general management of t

Republican Party, and promotes Republic

candidates at all levels – including candidates f

President, the U.S. House, the U.S. Sena

Governorships, and state legislatures. The RNC al

expends considerable resources on voter registrati

and get-out-the-vote activities that benefit t

Republican Party as a whole at the federal, sta

and local levels. Thus, a donor is effectively forced 

choose which of these vital aspects of the Part

operations to support. In addition, a donor w

contributes to the three national party committees 

the fullest extent possible under the aggregate lim

may not contribute one penny to any of the 50 sta

party federal accounts, any of the local par

committees that maintain federal accounts, or any 

the independent federal PACs found throughout t

nation. This result is generally inconsistent with t
and to assume unfettered interchange of ideas f

the bringing about of political and social chang

desired by the people.’” See Buckley, 424 U.S. at 

(quoting N.Y. Times Co. v. Sullivan, 376 U.S. 25

266, 269 (1964) (quoting Associated Press v. U.

326 U.S. 1, 20 (1945), and Roth v. U.S., 354 U.S. 47

484 (1957))). 

B. The Aggregate Limits Do Not 

Satisfy Or Serve Any AntiCorruption Interest, And Serve 

Only An Anti-Circumvention 

Interest Already Comprehensively 

Met By Other Prohibitions And 

Restrictions 

1. This Court has never held 

that aggregate limits serve 

any anti-corruption purpose 

unrelated to preventing 

circumvention 

The litigants appear to dispute whether th

Court has treated the aggregate limits as only 

anti-circumvention device (as Plaintiffs-Appellan

contend), or whether the Court has held th

aggregate limits also serve an independent an

corruption interest (as Defendant-Appell

contends). This Court’s precedent suppor

Plaintiffs-Appellants’ view. See FEC v. Co

Republican Fed. Campaign Comm. (Colorado II), 5

U.S. 431, 461 (2001) (referring to “corruption 

circumvention”). 
preventing circumvention of the base limits 

contributions to federal candidates. Buckley, 4

U.S. at 38. There is no suggestion in the Cour

brief discussion of the aggregate limit that it serv

any anti-corruption purpose unrelated to t

circumvention of “the basic individual contributi

limitation.” Id. 

In an effort to cast the aggregate limits 

broad anti-corruption devices that preve

corruption in their own right, both the FEC a

supportive amici presented the District Court with 

strained interpretation of this Court’s holding 

California Medical Association v. FEC, 453 U.S. 1

(1981). Both referred to language from Justi

Marshall’s opinion in California Medical Associati

which describes the aggregate limit as “serv[ing] t

important governmental interests in preventing t

corruption or appearance of corruption of t

political process that might result if su

contributions were not restrained.” Id. at 1

(Marshall, J., plurality opinion), quoted in FEC

Opp’n to Pl.’s Mot. for Prelim. Inj. at 12-1

McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D

2012) (No. 12-cv-1034); Mem. of Campaign Leg

Ctr. and Democracy 21 as Amici Curiae in Opp’n 

Pl.’s Mot. for a Prelim. Inj. at 15, McCutcheon 

FEC, 893 F. Supp. 2d 133 (D.D.C. 2012) (No. 12-c

1034). Part III of Justice Marshall’s opinion, fro

which the quoted language comes, was supported 

only four Justices. Justice Blackmun joined Parts 

II, and IV of Justice Marshall’s opinion, but did n

join Part III. Thus, contrary to the representatio
right. 

2. The 1976 Amendments to FECA 

included comprehensive anticircumvention protections that 

addressed the Buckley Court’s 

concerns regarding earmarking 

without attribution and political 

committee affiliation and 

proliferation 

The Court’s reasoning in Buckley appears 

rest on factors and possibilities that Congre

subsequently considered and addressed. In respon

to Buckley, Congress adopted contribution limits f

political parties and PACs, “anti-proliferatio

provisions for political committees, earmarki

disclosure requirements, and restrictions again

contributing in the name of another – all designed 

prevent circumvention of the base limits 

contributions to candidates. See FECA Amendmen

of 1976, Pub. L. No. 94-283, 90 Stat. 475, 487-

(1976). Since the enactment of these amendmen

no genuine anti-corruption or anti-circumventi

interest has existed to support the aggregate lim

which Congress nevertheless retained. 

FECA now provides that “all contributio

made by a person, either directly or indirectly, 

behalf of a particular candidate, includi

contributions which are in any way earmarked 

otherwise directed through an intermediary 

conduit to such candidate, shall be treated 
or otherwise directed through an intermediary 

conduit” as a contribution from the original donor 

the candidate that ultimately receives t

“earmarked” or “directed” contribution. Id. 

The political committees that the Buckl

Court worried could funnel contributions to 

particular candidate are political committees th

today would be deemed “affiliated,” either with th

candidate, each other, or both, pursuant to 2 U.S

§ 441a(a)(5). Section 441a(a)(5) provides that “

contributions made by political committe

established or financed or maintained or controll

by any . . . person, or by any group of such person

shall be considered to have been made by a sing

political committee . . . .” FEC regulations clar

that “all contributions made or received by mo

than one affiliated committee . . . shall be consider

to be made or received by a single politic

committee.” 11 C.F.R. § 110.3(a)(1). According

candidates and outside interest groups may 

longer maintain the multiple political committe

that the Buckley Court concluded could be used 

circumvent the contribution limits to candidates. 

3. Reviewing Buckley in light of the 

1976 Amendments to FECA 

demonstrates no continuing 

constitutional justification for 

upholding the aggregate limits 

The amended FECA does not allow 

individual to “contribute massive amounts of mon
contributions to the candidates political part

Buckley, 424 U.S. at 38. The possibility 

circumvention that troubled the Buckley Court 

now only possible if both a donor and politic

committee knowingly conspire to ignore and viola

the anti-earmarking provisions of FECA, whi

would likely also yield a contribution in the name 

another in violation of 2 U.S.C. § 441f. T

“circumvention” this Court referenced in Buckley 

best understood as the exploitation of a “loophole” 

the law that permitted a donor to do indirectly wh

could not be done directly – namely, contribute mo

than $1,000 to a candidate simply by using politic

parties and/or political committees 

intermediaries. A prophylactic measure w

appropriate in those circumstances. 

Now, however, the same act does n

constitute exploiting a “loophole.” Rather, that act 

now treated as a knowing and willful violation 

multiple provisions of the law. This behavior is 

longer “circumvention” of the law’s limitations, b

rather, the outright disregard of the law by at lea

two involved parties. Under these chang

circumstances, the aggregate limits do not serve t

“anti-circumvention” purpose they once had. 

Properly conceived and understood, t

aggregate limits today serve two basic purpos

both of which are dubious: (1) to limit the possib

extent to which a donor may knowingly violate oth

provisions of the law for the sake of maki

excessive contributions to candidates; and (2) 
government interests that this Court has deem

sufficiently important to justify infringing the Fir

Amendment rights of speech and association th

citizens and organizations possess in this country. 

In order to find the first purpose valid, t

Court must conclude that redundant prophylac

measures are valid in the First Amendment conte

and that the prophylaxis employed here actua

serves its stated purpose (that is, it preven

circumvention of the candidate contribution limit

The 1976 Amendments to FECA rendered t

aggregate limits superfluous and removed the

constitutional justification. The aggregate limits 

not directly or indirectly prevent a

“circumvention” that is not already addressed a

prevented by more precise and narrowly draw

provisions. An individual who wishes to circumve

the $2,600 per election limit on contributions to 

federal candidate can do so only by conspiring wi

one or more political parties or PACs willing to ser

as conduits in plain disregard of FECA’s an

earmarking provisions. The aggregate lim

effectively place a $76,400 cap on the scope of th

illegal conspiracy. 

If this Court accepts the “prophylaxis up

prophylaxis” justification asserted by t

government here, legislatures would be free 

impose layer upon layer of regulation in a neve

ending attempt to prevent people from knowing

violating the existing, core campaign finance law

This Court has already rejected such legislation. S
these redundant layers of regulation infringe t

rights of the overwhelming majority of law abidi

citizens for the sake of, perhaps, limiting the illeg

activity of a much smaller number of citizens – 

proposition this Court has previously rejected. S

Ashcroft v. Free Speech Coal., 535 U.S. 234, 2

(2002) (“The Government may not suppress lawf

speech as the means to suppress unlawful speech

Bartnicki v. Vopper, 532 U.S. 514, 529-30 (200

(“The normal method of deterring unlawful condu

is to impose an appropriate punishment on t

person who engages in it . . . . But it would be qu

remarkable to hold that speech by a law-abidi

[person] can be suppressed in order to deter condu

by a non-law-abiding third party.”). 

The second purpose noted above is 

illegitimate “leveling the playing field” measure th

cannot stand in light of this Court’s rece

precedent. See Ariz. Free Enter. Club's Freedo

Club PAC v. Bennett, 564 U.S. ____, 131 S. Ct. 280

2825 (2011) (“We have repeatedly rejected t

argument that the government has a compelli

state interest in ‘leveling the playing field’ that c

justify undue burdens on political speech.”); see al

Citizens United v. FEC, 558 U.S. 310, 349-56 (201

(rejecting antidistortion rationale as va

governmental interest); Davis v. FEC, 554 U.S. 72

741 (2008) (rejecting as legitimate government

interest “level[ing] electoral opportunities”); Aust

v. Mich. State Chamber of Commerce, 494 U.S. 65

705 (1990) (Kennedy, J., dissenting) (“the notion th

the government has a legitimate interest 
base limits may serve an anticorruption interest 

preventing a donor from “corrupting” a candidate 

contributing more than $2,600 per election, t

aggregate limits do not prevent a donor fro

corrupting any identifiable candidate, party, or PA

Rather, the only anti-corruption interest t

aggregate limits can possibly serve is the purport

interest in preventing a donor from corrupting t

“democratic system” or “political system” as a who

under the theory that the total amount that any o

donor may contribute to all federal candidat

parties, and PACs must be limited. See, e.g., FEC

Opp’n at 21, McCutcheon, 893 F. Supp. 2d 133 (N

12-cv-1034) (asserting that without the aggrega

limits, the “amount of money” that an individu

could contribute “per election cycle” “could eas

exert a corrupting influence on the democra

system”); Mem. of Campaign Legal Ctr. a

Democracy 21 at 18, McCutcheon, 893 F. Supp. 

133 (No. 12-cv-1034) (faulting plaintiffs f

“disregard[ing] the collective impact that up to 468 

such ‘limited’ contributions from a single donor w

potentially have on the political system”). T

District Court was correct in concluding that th

line of argument “simply sweeps too broadl

because “if anything is clear, it is that contributing 

large amount of money does not ipso facto implica

the government’s anticorruption interes

McCutcheon, 893 F. Supp. 2d at 139. Once the bro

notion that the aggregate limits prevent corrupti

of the “democratic system” or “political system” as 

whole is rejected, all that remains is the realizati
The governments discussion of massiv

contributions reinforces this conclusion. The FE

sought to alarm the District Court by noting that t

aggregate limits prevent a donor from contributing 

combined $3.5 million to 468 federal candidates a

56 party committees during a two-year electi

cycle. See FEC’s Opp’n at 20, McCutcheon, 893 

Supp. 2d 133 (No. 12-cv-1034). The FEC calls th

amount “massive” and asserts that “prevention 

such ‘huge’ contributions thus falls squarely with

the government’s anti-corruption and an

circumvention interests.” Id. at 20-21. The $3

million figure, however, is a red herring. In t

absence of the aggregate limits, no one cou

contribute $3.5 million to any one candida

political party, or PAC. Rather, $3.5 million is 

aggregate figure that must be split among (at lea

524 committees, none of which could receive 

 

4 In a May 2, 2013, open letter to Congress, amici cur

Campaign Legal Center and Democracy 21 made expli

that their support for the aggregate limits is premised 

the constitutionally impermissible anti-distortion rationa

The letter urged Members of Congress not to raise 

otherwise alter the aggregate limits, because “[t]

aggregate limit on individual giving is already far too hig

and “[a]ny such increase or change would only serve 

increase the access and influence of the wealthiest citize

in the country, at the expense of all other Americans.” S

Campaign Legal Center Press Release, Reform Groups Ur

Congress to Close Gaping Disclosure Loopholes (May 

2013), http://www.campaignlegalcenter.org/index.php?opti

=com_content&view=article&id=2110:may-2-2013-reformgroups-urge-congress-to-close-gaping-disclosureloopholes&catid=63:legal-center-press-releases&Itemid=6
existing base contribution limit, could actually exe

a corrupting influence on the democratic system

Id. at 21. 

On April 19, 2013, the FEC reported th

federal candidates, political parties, and PACs rais

a total of $7,135,700,000, and spent $7,004,700,00

during the 2012 election cycle. See FEC Pre

Release, FEC Summarizes Campaign Activity of t

2011-2012 Election Cycle (Apr. 19, 201

http://fec.gov/press/ press2013/20130419_2012-24

Summary.shtml. Organizations that are n

registered with the FEC (that is, persons other th

political committees) reported an addition

$300,400,000 in independent expenditures, bringi

the total reported spending figure to $7,305,100,00

Id. $3.5 million is 0.048% of this sum. T

nominally large figures routinely presented 

proponents of strict contribution limits are far le

remarkable when considered in context. What t

FEC and supportive amici argued is that no don

should be permitted to inject a total of $3.5 milli

into the political system (even if that amou

represents a tiny fraction of total election spendi

that is divided among hundreds of recipients). 

this Court has previously recognized, this an

distortion/leveling-the-playing-field rationale has 

legitimate place in the American system.5 

 

5 This argument also ignores the fact that individu

already inject $3.5 million or more into the Americ

political system at the federal level. Last year, at least 

individuals contributed more than $3.5 million to one 

more FEC-regulated independent expenditure-on
clear away another vestige of that nowdiscredit

concept: the imposition of aggregate limits as 

expression of disapproval of so-called “massiv

contributions into the political system as a whole. 

II. A NATIONAL PARTY COMMITTEE’S 

RELATIONSHIP WITH ITS 

CANDIDATES IS NOT SHAPED BY 

THE AGGREGATE LIMITS, AND 

OTHER PROVISIONS OF FECA 

GOVERN THE DIRECT 

INTERACTIONS OF PARTIES AND 

CANDIDATES 

When a national party committee receives 

contribution from a supporter, it is limited (bo

legally, but also as a practical matter) in how it m

spend that contribution. Assuming the contributi

was not earmarked, the national party might spe

those funds in any of the following ways: 

(1) Contribute the money to one or mo

federal candidates, subject to applicab

contribution limits; 

(2) Contribute the money to one or mo

federal political committees (PAC

subject to applicable contributi

limits; 

 

committees ( “Super PACs”). See Al Shaw & Kim Bark

PAC Track: What and Where Are the Super PACs Spendin

Top Contributors To Super PACs, ProPublica (Dec. 7, 201

http://projects.propublica.org/pactrack/ #contributions=all. 
(4) Engage in coordinated expenditures 

behalf of one or more of its candidat

for office, subject to applicable par

coordinated expenditure limits; 

(5) Pay costs related to generic party vot

identification and voter registratio

get-out-the-vote efforts, and other vot

education projects; 

(6) Pay overhead, administration, staffin

and other organization/infrastructu

costs; or 

(7) Use the funds to make independe

expenditures (unlimited). 

The aggregate limits do not directly factor in

any of these spending options, and none of the

options represents a means of aiding and abetti

the original contributor’s circumvention of applicab

contribution limits. In fact, such circumvention 

prohibited by FECA’s limitations on contributio

and coordinated expenditures, as well as 

provisions that require the proper attribution 

earmarked contributions. Nor do the aggrega

limits have any direct impact on the relationship 

the NRSC and NRCC with their respecti

candidates for office. The aggregate limits ser

only to reduce the overall amount that nation

party committees could raise insofar as t

aggregate limits force donors to limit and apporti

their contributions among party committees. Wi

no other legal impediments in place, if the nation

party committees were able to raise more mon

from the limited universe of available donors, th
This does not, however, change the fact th

other legal impediments abound. The level 

support that a national party committee may provi

its candidates is so strictly circumscribed a

limited in other ways under existing law th

removal of the aggregate limits would not have a

significant effect on the financial relationsh

between the national parties and their candidat

Contrary to the suggestions of some, invalidation 

the aggregate limits would not put national par

committees in a position to facilitate circumventi

of the contribution limits to candidates or oth

political committees. 

A. A National Party Committee 

Is Limited In The Amount It 

May Contribute To A 

Candidate By A Direct 

Contribution Limit, Not By 

The Aggregate Limits 

Federal law permits a national par

committee to contribute a maximum of $5,000 p

election to a U.S. House or Presidential candidate. 

U.S.C. § 441a(a)(2)(A). A separate shared lim

applies to U.S. Senate candidates, which allows t

NRSC or DSCC, along with the national committ

of a political party (that is, the RNC or DNC) 

contribute up to $45,400 in the aggregate p

campaign (not per election). Id. § 441a(h). 

The NRCC could, under these limi

contribute a total of $5,000 per election to each of 
to $4,350,000 every two years in direct contributio

to candidates (or 0.06% of $7 billion). Regardless 

how much money the NRCC can raise, it cann

contribute any more than this sum to its candidate

The NRSC could, under its shared limits wi

the RNC, contribute up to $45,400 to each of its 1

Senate candidates that are up for election over a s

year period. This totals $4,540,000 every six yea

and not more than $1,543,600 in a single electi

cycle in which 34 U.S. Senate seats are up f

election (or 0.02% of $7 billion). Regardless of ho

much money the NRSC can raise, it cann

contribute any more than these sums over a six-ye

or two-year period, respectively. 

Every national party committee rais

substantially more than these totals, on both annu

and biennial bases, even with the aggregate limits 

place. The aggregate limits are not critical factors 

a national party committee’s decision to ma

contributions to as many of its candidates as 

deems strategically wise, and invalidation of t

aggregate limits would not – and could not und

existing laws not challenged here – result in a

national party committee making any contributio

to candidates beyond what is currently permitt

under existing law. A national party committee 

simply not permitted to make unlimit

contributions or transfers to its candidates. 

A review of publicly available records for t

last several election cycles shows that the U
candidates. In 2012, for example, the NRC

contributed $639,090 to candidates; the DCC

contributed $863,217 to candidates; the NRS

contributed $775,800 to candidates; and the DSC

contributed $646,500 to candidates. 

These figures reflect strategic choic

regarding the best use of a committee’s funds. F

example, even with unlimited resources on hand

party committee might not contribute to 

unknown challenger facing a popular incumbent w

is almost certain to be reelected if it believes th

$5,000 could be better spent elsewhere. T

invalidation of the aggregate limits would n

change this calculation, and would not result in a

fundamental change to the political party-candida

relationship. Rather, it would simply expand t

party committee’s ability to amass resources th

would then be available to fund activities that t

committee already undertakes, and which a

already permitted under existing law. 

B. A National Party Committee 

Is Limited In The Amount It 

May Spend In Coordination 

With A Candidate By A Dire

Limit On Party Coordinated 

Expenditures, And Not By 

The Aggregate Limits 

 In addition to the contributions that 

national party committee may make directly to 

candidates, described above, the national par
candidates for Federal office. See 2 U.S.C. 

441a(d)(3)(A)-(B). 

 FECA grants coordinated party expenditu

authority only to “the national party committe

(long interpreted to mean either the RNC or DN

and each of the state party committees. B

regulation, the FEC permits either the RNC/DNC 

the state party committee to assign its par

coordinated spending authority to another politic

party committee. See 11 C.F.R. § 109.33(a) (“T

national committee of a political party and a Sta

committee of a political party, including a

subordinate committee of a State committee, m

assign its authority to make coordinated par

expenditures authorized by 11 CFR 109.32 

another political party committee.”). Par

coordinated spending authority is routinely assign

by the RNC to both the NRSC (to spend on behalf 

Republican Senate candidates) and the NRCC 

spend on behalf of Republican House candidate

See FEC Advisory Opinion 1986-31 (“DSCC al

serves as the agent of the Democratic Nation

Committee and state committees for purposes 

making coordinated party expenditures in senator

general election campaigns pursuant to 2 U.S.

441a(d)”). Thus, while the NRSC and NRCC are n

granted statutory authority to engage in coordinat

spending on behalf of their respective candidates, 

practice, both routinely exercise this authori

pursuant to FEC regulation, and this spending h

become an important function of both committees. 
with only one representative, where the limit 

$93,100. For Senate elections, the limit ranges fro

$93,100 to $2,682,000. 2013 FEC Price Ind

Adjustments, 78 Fed. Reg. at 8531 

Accordingly, party committees are not free 

support their own candidates with coordinat

expenditures. There are strict limits on coordinat

expenditures that a party may make on behalf of 

candidates for office. See Colorado II, 533 U.S. 

465 (Thomas, J., dissenting) (“The Par

Expenditure Provision, 2 USC § 441a(d)(3), severe

limits the amount of money that a national or sta

committee of a political party can spend 

coordination with its own candidates for the Sena

or House of Representatives.”). This Court uphe

the party coordinated expenditure limits in Colora

II as a valid anti-circumvention measure th

protects the base candidate contribution limits. S

Colorado II, 533 U.S. at 465 (“[A] party’s coordinat

expenditures . . . may be restricted to minimi

circumvention of contribution limits”). 

A review of public records demonstrates th

the NRCC, DCCC, NRSC, and DSCC have n

“maximized” their total possible party coordinat

spending (assuming that authority is fully assign

by the RNC and DNC) in the last several electi

cycles. For example, in 2012, the NRCC spe

$4,716,306 in coordinated party expenditures, wh

the NRSC spent $7,706,227. (The DCCC and DSC

spent $5,348,666 and $9,354,010, respectivel

With respect to U.S. House elections, the nation
Price Index Adjustments for Expenditu

Limitations and Lobbyist Bundling Disclosu

Threshold, 77 Fed. Reg. 9925, 9926 (Feb. 21, 201

[hereinafter 2012 FEC Price Index Adjustments

With respect to U.S. Senate elections, each part

national party committee and state par

committees were authorized by FECA to spend 

total of $21,916,800 each in coordination with the

Senate candidates in 2012. Id. 

 The party coordinated expenditure limits ha

nothing to do with the aggregate limits, and if t

aggregate limits were held unconstitutional, parti

could still make the exact same amount 

coordinated expenditures on behalf of their ow

candidates. If more funds became available 

national party committees with the aggregate lim

removed, those committees might choose to furth

exercise their existing ability to make par

coordinated expenditures. Removal of the aggrega

limits, however, would not create or permit a

opportunity for circumvention. 

 The District Court, nevertheless, found th

the aggregate limits are “justified” as an an

 

6 In 2012, eight states had only one U.S. Hou

Representative and the party coordinated expenditure lim

for these elections was $91,200 each. The remaining 4

U.S. House elections were subject to a party coordinat

spending limit of $45,600. In addition, the parties we

permitted to spend $45,600 in connection w

Delegate/Resident Commissioner elections in the District 

Columbia, Puerto Rico, and four territories. 
McCutcheon, 893 F. Supp. 2d at 140. The Distr

Court speculated that party committees might use 

joint fundraising committee to route a $500,0

contribution to a single committee’s coffers to 

spent on coordinated expenditures. Id. (intern

citation omitted). In 2012, there were only 12 stat

where the NRSC could have lawfully made mo

than $500,000 in coordinated expenditures 

support of a candidate, and no states where t

NRCC could have done so. See 2012 FEC Pri

Index Adjustments, 77 Fed. Reg. at 9926. 

As noted infra in Section III, a donor may n

circumvent any base contribution limit 

contributing to a joint fundraising committee, a

what the District Court describes is a series 

transactions that, aside from the dollar amount 

issue, are all perfectly legal under existing law, a

which do not even remotely resemb

“circumvention” of the base contribution limi

Under current law, roughly the same result could 

achieved with a currently legal $76,400 contributi

to a joint fundraising committee consisting of 

national party committee and five state par

committees. 

The District Court appears to presum

however, that if the dollar amount at issue is rais

to $500,000, then the net effect of these various leg

transactions becomes corrupting as a constitution

matter, and therefore subject to limitation. T

District Court then concludes that a restriction 

justified on the basis of the rejected “gratitud
elected officials does not mean that these officials a

corrupt . . . .”). In short, the District Court’s analy

was both factually and constitutionally flawed. 

C. Candidates May Not 

Contribute Funds To Other 

Candidates Without 

Limitation, And CandidateTo-Candidate Contributions 

Generally Originate From 

Small Numbers Of 

Officeholders 

 While national, state, and local committees 

the same political party may freely transfer fun

amongst themselves, see 2 U.S.C. § 441a(a)(

candidates do not enjoy this same freedom.7 Instea

one federal candidate committee is permitted 

“support” another federal candidate with 

contribution of no more than $2,000 per election. I

§ 432(e)(3)(B). Candidates cannot circumvent th

$2,000 limit by utilizing multiple authoriz

committees, as “[a]ll authorized committees of t

same candidate for the same election to Feder

office are affiliated,” 11 C.F.R. § 100.5(g)(1), a

contributions to affiliated committees are aggregat

for contribution limit purposes. See 2 U.S.C. 

441a(a)(5). Thus, candidate-to-candida

contributions are strictly limited and do not provi

an avenue for circumventing contribution limits. 

 

7 Federal candidates and officeholders may trans

unlimited campaign funds to federal and state pa

committees. See 2 U.S.C. § 439a(a)(4). 
candidate, has earmarked that contribution. A

“earmarked” contribution must be treated as 

contribution from the donor to the candidate f

whom the contribution was earmarked, and t

intermediary committee must report the transacti

on its own financial disclosure reports. See id. 

441a(a)(8). 

 Candidate-to-candidate contributions are n

highly prevalent, and most originate from a sm

number of Congressional candidate committees. F

example, during the 2012 election cycle, there we

2,756 reported contributions from one U.S. Hou

candidate committee to another candidate committ

in the FEC’s databases. The sum value of the

contributions was $3,651,202. However, 1,490 

these contributions, or approximately 54% of 

reported candidate-to-candidate transfers, cam

from only 20 House Members. Fifty-five (55) Hou

Members were responsible for 80% of all candidat

to-candidate contributions in the 2012 election cyc

(The figures from 2010 are very similar: 20 Hou

Members made nearly 55% of all candidate-

candidate contributions, and 47 House Membe

were responsible for 80% of all candidate-

candidate contributions). Thus, while a nomina

large sum is contributed by candidates to oth

candidates, a relatively small percentage of Hou

Members is responsible for most of the giving; it 

not a widespread practice that enables a

circumvention of applicable limits. 
sums to a large number of candidate committe

that will pass on these funds to her favor

candidates.” Mem. of Campaign Legal Ctr. a

Democracy 21 at 28, McCutcheon, 893 F. Supp. 

133 (No. 12-cv-1034). These amici claim that t

aggregate limits “[e]nsur[e] that donors cannot rou

hundreds of contributions to their preferr

candidates through other candidate committees.” I

at 29. Of course, this scenario would be illegal ev

without the aggregate limits in place: the existi

conduit and earmarking provisions prevent it, and 

massive conspiracy would be required to carry o

what is imagined by amici. The end result of amic

hypothetical could only be achieved legally if the

hundreds of “other candidate committees” 

independently concluded that it would be wise 

transfer $2,000 to a certain candidate. If th

somehow occurred, the initial donor is not part of t

equation, meaning that donor poses no corrupti

threat. 

III. JOINT FUNDRAISING COMMITTEES 

ARE NOT A MEANS OF 

CIRCUMVENTING CONTRIBUTION 

LIMITS 

The District Court was persuaded that 

viable anti-circumvention rationale existed 

support of the aggregate limits insofar as tho

limits serve to prevent contributors from routi

large contributions to one committee through 

intermediary joint fundraising committee (“JFC

See McCutcheon, 893 F. Supp. 2d at 140 (“[W
that joint fundraising committees are a mechanis

that can be used to circumvent contribution limi

The District Court supposed that “[a]n individu

might . . . give half-a-million dollars in a single che

to a joint fundraising committee,” that “[t]he half

million dollar contribution might . . . find its way to 

single [party] committee’s coffers,” that committ

“might use the money for coordinated expenditure

and “[t]he candidate who knows the coordinat

expenditure funding derives from that single lar

check at the joint fundraising event will kno

precisely where to lay the wreath of gratitude.” S

id. (emphasis added). 

As explained below, a donor’s contribution to 

JFC is generally distributed among participati

committees according to a default allocation formu

although a donor may also instruct that his or h

funds be allocated differently, provided th

allocation complies with all applicable contributi

limits. A donor may not, however, contribute to 

JFC with instructions for how proceeds should 

subsequently transferred from one participa

committee to another. Existing prohibitions again

using conduits to contribute in the name of anoth

as well as the well-established legal consequences 

“earmarking” a contribution, make this impossible 

do legally. If a candidate or party committ

transfers its joint fundraising proceeds to anoth

party committee, those transfers must be the resu

of the candidate’s or party committee’s ow

independent judgment. 
 a seriously flawed understanding that appears 

derive from amici Campaign Legal Center a

Democracy 21.8 As entities with first-ha

knowledge of the actual operations of JFCs, howev

amici here can offer a more accurate and comple

analysis of the nature and workings of tho

committees. 

A. A Joint Fundraising 

Committee Is A Highly 

Regulated Method Of 

Fundraising That Permits A 

Donor To Efficiently 

Contribute To Multiple 

Political Committees 

Simultaneously 

Contrary to what was suggested to t

District Court, JFCs do not, and in the absence 

the biennial aggregate individual contribution lim

would not, allow for “multi-million doll

contributions” to any political committee in violati

of any base limit. See Mem. of Campaign Legal C

and Democracy 21 at 6, McCutcheon, 893 F. Supp. 

133 (No. 12-cv-1034). Depending on the identity 

the participating committees, a JFC allows a don

to make multiple contributions of up to $2,600 p

election to a federal candidate, multip

contributions of up to $5,000 per year to politic

action committees, multiple contributions of up 

 

8 See Mem. of Campaign Legal Ctr. and Democracy 21 at 

8, McCutcheon, 893 F. Supp. 2d 133 (No. 12-cv-1034). 
or credit card transaction. There is absolutely 

reason to be alarmed by Contributor A, who writ

one check in the amount of $7,800 and presents th

check to three candidates with the expectation th

they split it evenly, as opposed to Contributor B w

writes three separate checks for $2,600 to each 

those same three candidates. Contributor A has n

made a contribution of $7,800 to anyone. Rath

Contributor A has made three contributions 

$2,600, just like Contributor B. The only differen

is that Contributor A has written two fewer checks

The FEC formally recognized JFCs in its 19

regulations at 11 C.F.R. § 102.17, which “[s]ets for

the basic rules for conducting joint fundraisi

activities.” FEC Transmittal of Regulations 

Congress on Transfer of Funds; Collecting Agen

Joint Fundraising, 48 Fed. Reg. 26,296, 26,298 (Ju

7, 1983). These regulations, which have not be

significantly amended since 1983, set forth extensi

rules and procedures for any political committ

wishing to raise funds jointly with anoth

committee. JFCs are highly-regulated operatio

that are subject to pages of FEC requirements 

ensure that (1) all contribution limits, sour

prohibitions, recordkeeping and reporti

requirements are stringently observed, and 

contributors are aware of exactly what t

 

9 Under existing law, the aggregate limits serve as a cap 

JFCs insofar as an individual contributor to the committe

participating in a JFC cannot contribute more th

$123,200 during the 2013-2014 election cycle. 
A JFC consists of two or more participa

committees engaged in activities to raise fun

jointly. Participants usually establish a separa

committee (that is, the JFC) to serve as t

fundraising representative. 11 C.F.R. § 102.17(a)(

This separate committee must register with t

FEC, collect and maintain the same records, and f

the same periodic financial disclosure reports as a

other political committee. Id. § 102.17(a)(1), (c)(4). 

JFC participants must “[e]nter into a writt

agreement,” which “[s]hall identify the fundraisi

representative and shall state a formula for t

allocation of fundraising proceeds. The formu

shall be stated as the amount or percentage of ea

contribution received to be allocated to ea

participant.” Id. § 102.17(c)(1). 

Joint fundraising participants must al

provide a detailed written notice with ea

solicitation of funds to inform potential donors of: 

the names of the participant committees; (2) t

allocation formula to be used to distribute proceed

(3) a statement informing contributors that they a

not required to adhere to the established allocati

formula and may, instead, provide their ow

designation of funds (provided such designati

complies with all applicable contribution limits); a

(4) a statement informing contributors that t

allocation formula may be altered if the a contribut

makes a contribution that would exceed th

contributor’s limit to any given participant. Id. 

102.17(c)(2). 
representative and participating committees sh

screen all contributions received to insure that t

[contribution] prohibitions and limitations of 11 CF

parts 110 and 114 are observed.” Id. 

102.17(c)(4)(i). Once the JFC receives contribution

those funds are deposited into the JFC’s separa

account, and gross proceeds are allocated among t

committees according to the formula set forth in t

written notice. If this “default” allocation results 

a contributor exceeding a contribution limit, t

funds are “reallocated,” if permissible, to ensure th

each contributor adheres to all applicab

contribution limits. See id. § 102.17(c)(6)(i). If 

contribution cannot be reallocated permissibly, t

contribution is refunded to the donor. Under 

circumstances may a contribution to a JFC lawfu

result in an allocation that exceeds a dono

applicable contribution limit. 

The JFC is required to file comprehensi

financial activity reports with the FEC, disclosing 

funds raised and disbursed. The participati

committees must report their allocated gro

proceeds and net distributions, including “[a] mem

Schedule A itemizing its share of gross receipts 

contributions from original contributors to the exte

required under 11 CFR 104.3(a).” Id. 

102.17(c)(8)(i) – (ii). As of result of these dual filing

interested parties can easily see how much 

individual contributor gave to a joint fundraisi

committee in total, as well as how that total amou

was divided among the participants. 
And Have Consistently And 

Historically Collected 

Contributions Up To The 

Applicable Limit For Each 

Participating Committee 

JFCs are not a novel or recent creation; th

are a long-accepted practice of which Congress 

well aware. The FEC considered the permissibili

of joint fundraising very early in its history in 

series of Advisory Opinions issued in 1977. S

Federal Election Commission Advisory Opinio

1977-08 (approving joint fundraising to reti

outstanding campaign debt), 1977-14 (approvi

joint fundraising to retire outstanding campai

debt), 1977-23 (approving a joint fundraising effo

consisting of 11 members of the “Freshm

Republican Class of the 95th Congress”) and 1977-

(approving a joint fundraising committee consisti

of a candidate committee and the Colorado Sta

Democratic Central Committee); see also Feder

Election Commission Advisory Opinion 1979-

(approving joint fundraising effort betwe

Democratic Senatorial Campaign Committee a

“certain Democratic Senate candidates”). 

The earliest of these Advisory Opinion

issued April 20, 1977, makes clear that 

contribution to a JFC has always been conceived 

as multiple contributions aggregated into a sing

check, and subject to all applicable limits. S

Advisory Opinion 1977-14 at 2 (“All persons maki

contributions to the Special Committee will 
utilized to assure compliance with the contributi

limits.”). 

Only more recently have JFCs become 

object of scorn within the “campaign finance reform

community, which has transformed the JFC into 

useful red herring. Publicly, “reformers” ha

crafted a narrative in which JFCs allow donors 

exceed the otherwise applicable contribution limi

while serving as convenient opportunities f

influence-peddling.10 Amici Campaign Legal Cent

and Democracy 21 repeated some of this rhetoric 

their brief to the District Court. See, e.g., Mem. 

Campaign Legal Ctr. and Democracy 21 at 

 

10 See, e.g., Joseph Morton, Kerrey, Dems Set Up Jo

Fundraising Committee, Omaha World-Herald (Apr. 

2012), http://www.omaha.com/article/20120410/NEWS

120419949/0 (“Meredith McGehee, policy director at t

Campaign Legal Center, said joint fundraising committe

represent a way to quickly and conveniently get lar

donations in the door. She said the joint committees a

rooted in the wink-and-a-nod understanding that while t

bulk of the donations go to the state party, that money 

ultimately intended to benefit the candidate in questi

‘Everybody knows it’s just a way of legally earmarki

additional money for the candidate,’ she said.”); Alex Kno

Politicians Create Record Number of Joint Fundraisi

Committees, Roll Call (Sept. 17, 201

http://www.rollcall.com/news/-49934-1.html (“In the

situations, the candidate often gets recognition with t

national party for the money he or she has raised in ‘mu

the same way that bundlers get credit for how they ra

contributions,’ said Richard Hasen, a professor specializi

in election law at Loyola Law School in Los Angeles. ‘It’

way to gain stature in the party.’”). 
different committees, and instead can simply wr

one check to the joint fundraising entity and recei

immediate recognition for their largesse.”); id. at 6

(asserting that joint fundraising committe

“[c]ombin[e] the allure of candidate access wi

higher-limit party committees”). 

In a more candid moment, however, one of t

amici’s representatives acknowledged that JFCs a

not actually tools of contribution limit circumventi

and influence and access seeking. In 2010, t

Campaign Legal Center’s Paul Ryan said of JFC

“The only thing that a joint fundraising committ

allows is for one check to be written instead 

multiple checks.” Alex Knott, Politicians Crea

Record Number of Joint Fundraising Committe

Roll Call (Sept. 17, 2010), http://www.rollcall.co

news/-49934-1.html. 

A JFC is nothing more than an administrati

convenience, for both political committees a

donors. The candidates and party committees th

participate in a JFC may host fundraising events 

direct mail campaigns together, thereby achievi

fundraising cost savings and other efficiencies, wh

donors may make contributions to the participan

without the burden of attending multiple even

and/or writing a separate check to each participan

JFCs enable donors to exercise their constitution

and statutory rights efficiently; they do not perm

anyone to exceed or evade any existing contributi

limit. To the extent that anyone actually believ

that JFCs create the “appearance” that candidat
of an uninformed misunderstanding. 

The question of what could theoretically – a

illegally – be done is far different than what real-li

rational actors actually do. Our experience wi

JFCs goes beyond merely fretting about them, and 

our considerable experience, neither candidates n

political parties have any interest in joi

fundraising for the sake of helping donors eva

campaign finance laws. 

Broad prophylactic rules that infringe on Fir

Amendment rights should not be upheld where th

serve only to protect against highly improbable, a

likely illegal, hypothetical situations dreamed up 

interest groups. See Nixon v. Shrink Mo. Gov't PA

528 U.S. 377, 392 (2000) (“[W]e have never accept

mere conjecture as adequate to carry a Fir

Amendment burden”). Limitations on a citizen

First Amendment rights cannot be drawn to targ

the most outlandish hypotheticals that intere

groups can conceive, especially where those intere

groups have an interest in manufacturing t

“appearance” of corruption that this Court has he

can justify campaign finance regulation. 

CONCLUSION 

For the foregoing reasons, the provisions of 

U.S.C. § 441a(a)(3) at issue in this matter should 

declared unconstitutional and the decision of t

United State District Court for the District 

Columbia reversed. 
Counsel of Record 

Thomas J. Josefiak 

J. Michael Bayes 

Holtzman Vogel Josefiak PLLC 

45 North Hill Drive 

Suite 100 

Warrenton, VA 20186 

(540) 341-8808 

(540) 341-8809 

Jtorchinsky@hvjlaw.com 

Counsel for Amici Curiae 

Jessica Furst Johnson 

General Counsel 

National Republican

 Congressional Committee 

310 First Street, SE 

Washington, DC 20003 

Megan L. Sowards 

General Counsel 

National Republican Senatorial 

Committee 

425 Second Street, NE 

Washington, DC 20002 

May 10, 2013