No. 12-536

In The

Supreme Court of the United States

____________

Shaun McCutcheon and Republican National

Committee, Plaintiffs-Appellants

v.

Federal Election Commission

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief on the Merits for Appellant

Republican National Committee

____________

Stephen M. Hoersting

700 E. Schantz Ave.

Dayton, OH 45419

Hoersting@gmail.com

937/623-6102

Of Counsel

May 6, 2013

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Anita Y. Woudenberg

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for Republican

National Committee
Questions Presented

Federal law imposes two types of limits on political

contributions by individuals. Base limits restrict the

amount an individual may contribute to a particular

candidate committee ($2,600 per election); national

party committee ($32,400 per calendar year); state,

district, and local party committee ($10,000 per calendar year (combined limit)); and political action committee (“PAC”) ($5,000 per calendar year). 2 U.S.C. 441a

(a)(1)(with current limits added here).See Merits Brief

Appendix (“MB-App.”) 3a, 17a.

Aggregate limits restrict the total contributions an

individual may make in a biennial election cycle as

follows: $48,600 to candidate committees and $74,600

to non-candidate committees, of which no more than

$48,600 may go to non-national party committees (i.e.,

state, district, and local party committees (combined)

and PACs). 2 U.S.C. 441a(a)(3) (with current limits

added here). See MB-App. 4a, 17a.

Appellant presents these questions:

1. Whether the $74,600 aggregate limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)

(B), is unconstitutional as applied to contributions to

national party committees.

2. Whether the $74,600 aggregate limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)

(B), is unconstitutional facially.

3. Whether the $48,600 aggregate sub-limit on contributions to non-national party committees, 2 U.S.C.

441a(a)(3)(B), is severable.

4. Whether the $48,600 aggregate limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A),

is unconstitutional.

(i)
Corporate Disclosure

The Republican National Committee (“RNC”) is an

unincorporated association, so no corporations are involved.

(ii)
Table of Contents

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . (i)

Corporate Disclosure.. . . . . . . . . . . . . . . . . . . . . . . (ii)

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . (iii)

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . (viii)

Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitution, Statutes & Regulations. . . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . 6

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Aggregate Limits Fail Exacting Scrutiny,

Though Strict Scrutiny Should Apply.. . . . . . 7

A. Aggregate Limits Should Not Be

Treated as Mere Base Contribution

Limits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Under Buckley’s Scrutiny Dichotomy,

Strict Scrutiny Applies Because the

Speech Burden Is Cognizable.. . . . . . . . . 12

(iii)
C. Alternatively, Strict Scrutiny Should

Apply Under Substantial-Burden Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. The $74,600 Aggregate Limit on Contributions to Non-Candidate Committees Is Unconstitutional as Applied to National Party

Committees.. . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Buckley’s Facial Upholding of the

“Ceiling” Does Not Control this

Case, but this Court Should Apply

Buckley’s Analysis.. . . . . . . . . . . . . . . . . . 15

B. Congress Fixed Buckley’s Posited

Conduit-Contribution Mechanism... . . . . 19

C. In BCRA, Congress Repealed and Replaced the “Ceiling” with Multiple Aggregate limits.. . . . . . . . . . . . . . . . . . . . . . 24

D. The $74,600 Aggregate Limit Lacks a

Cognizable Interest as Applied to National Party Committees.. . . . . . . . . . . . . 24

1. The Anti-Corruption Interest Is Not

Directly Implicated.. . . . . . . . . . . . . . . 25

2. No Conduit-Contribution Concern

Exists... . . . . . . . . . . . . . . . . . . . . . . . . 26

(a) The Government’s Ability to Assert a Conduit-Contribution Concern Is Limited in Scope.. . . . . . . . 27

(iv)
(b) Buckley Requires Examination of the Potential for

Political-Committee Proliferation, “Huge” Contributions,

and Conduit-Capability... . . . . . . . 31

(c) Congress Imposed a PoliticalCommittee Proliferation Prophylaxis.. . . . . . . . . . . . . . . . . . . . . . . . 32

(d) Congress Imposed a HugeContribution Prophylaxis.. . . . . . . 34

(e) Congress Imposed an Anti-Conduit Prophylaxis by Many Prophylaxes.. . . . . . . . . . . . . . . . . . . . . 37

3. The Aggregate Limit Relies on an

Unconstitutional Equalizing Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

4. The Lower Court’s Posited

Conduit-Contribution Mechanism

Fails Scrutiny.. . . . . . . . . . . . . . . . . . . 44

III. The $74,600 Aggregate Limit on Contributions to Non-Candidate Committees Is Facially Unconstitutional.. . . . . . . . . . . . . . . . . 52

IV. The $48,600 Aggregate Limit on Contributions to State Party Committees and PACs

Is Non-Severable and So Should Be Struck.. 52

V. The $48,600 Aggregate Limit on Contributions to Candidates Is Unconstitutional... . . 53

(v)
A. The Applicable Concern Is Preventing

Conduit-Contributions.. . . . . . . . . . . . . . . 54

B. The Government Cannot Justify the

Aggregate Limit Under Either Exacting

or Strict Scrutiny.. . . . . . . . . . . . . . . . . . . 55

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Merits Brief Appendix Contents

U.S. Constitution, Amendment I. . . . . . . . . . . . . . . 1a

18 U.S.C. 608(b) (1974). . . . . . . . . . . . . . . . . . . . . . . 1a

2 U.S.C. 441a(a)(1)-(5), (8). . . . . . . . . . . . . . . . . . . . 3a

2 U.S.C. 441f. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

11 C.F.R. 100.5(g). . . . . . . . . . . . . . . . . . . . . . . . . . . 7a

11 C.F.R. 110.4(b). . . . . . . . . . . . . . . . . . . . . . . . . . 10a

11 C.F.R. 110.5(a)-(b). . . . . . . . . . . . . . . . . . . . . . . 11a

11 C.F.R. 110.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12a

FEC, Contribution Limits for 2013-2014. . . . . . . . 17a

Buckley-Scheme and BCRA-Scheme Charts. . . . . 18a

(vi)
Table of Authorities

Cases

Arizona Free Enterprise Club’s Freedom Club

PAC v. Bennett, 131 S. Ct. 2806 (2011).. . . . . . . 14

Blount v. Rizzi, 400 U.S. 410 (1971).. . . . . . . . . . . . 53

Broadrick v. Oklahoma, 413 U.S. 601 (1973). . . . . 52

Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). . . . . . . . . . . . . . . . . . . 11

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975). . . 11

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

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

182 (1981).. . . . . . . . . . . . . . . . . . . . . . . . 22-24, 31

Citizens Against Rent Control v. Berkeley, 454

U.S. 290 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . 13

Citizens United v. FEC, 130 S. Ct. 876 (2010). passim

Davis v. FEC, 554 U.S. 724, 744 (2008). . . . . . . . . . 14

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).. 25

FEC v. Beaumont, 539 U.S. 146 (2003). . . . . . . . . . . 7

FEC v. Colorado Republican Federal Campaign

Committee., 518 U.S. 604 (1996). . . . . . . . . . . 7, 26

(vii)
FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001) 

. . . . . . . . . . . . . . . . . . . . . . . . 11, 26, 43, 46, 48-49

FEC v. Craig, No. 12-0958, 2013 WL 1248271,

(D.D.C. Mar. 28, 2013).. . . . . . . . . . . . . . . . . . . . 22

FEC v. National Conservative PAC, 470 U.S. 480

(1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 38

FEC v. Wisconsin Right to Life, 551 U.S. 449

(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

McConnell v. FEC, 540 U.S. 93 (2003). . . . . 21, 30, 36

NAACP v. Button, 371 U.S. 415 (1963). . . . . . . . . . . 7

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

 . . . . . . . . . . . . . . . . . . . . 9, 11, 13, 35, 53, 56, 58

Republican Party of Minnesota v. White, 536 U.S.

765 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Turner Broadcasting System v. FCC, 512 U.S. 622

(1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 48

Constitutions, Statutes, Regulations & Rules

2 U.S.C. 437g.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

2 U.S.C. 439a(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . 54

2 U.S.C. 441a(a)(1). . . . . . . . . . . . . . . . . . . . . 1, 23, 52

2 U.S.C. 441a(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

(viii)
2 U.S.C. 441a(a)(3)(A). . . . . . . . . . . . . . 5, 6, 53, 59, 60

2 U.S.C. 441a(a)(3)(B). . . . . . . . (i), 4-6, 24, 42, 52, 60

2 U.S.C. 441a(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . 20

2 U.S.C. 441f. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. 608(b) (1974). . . . . . . . . . . . . . . . . . . . . . . . 1

27 U.S.C. 427.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

11 C.F.R. 100.5(g). . . . . . . . . . . . . . . . . . . . . . 1, 22, 32

11 C.F.R. 100.5(g)(3). . . . . . . . . . . . . . . . . . . . . . . . . 33

11 C.F.R. 100.5(g)(3)(iv). . . . . . . . . . . . . . . . . . . . . . 33

11 C.F.R. 102.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

11 C.F.R. 110.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 47

11 C.F.R. 110.1(h). . . . . . . . . . . . . . . . . . . . . . . . . . . 40

11 C.F.R. 110.2(h). . . . . . . . . . . . . . . . . . . . . . . . . . . 40

11 C.F.R. 110.3(a). . . . . . . . . . . . . . . . . . . . . . . . 22, 33

11 C.F.R. 110.3(b)(1)-(2). . . . . . . . . . . . . . . . . . . . . . 33

11 C.F.R. 110.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 20

11 C.F.R. 110.3(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . 20

11 C.F.R. 110.4(b). . . . . . . . . . . . . . . . . . . . . . . . . 1, 39

(ix)
11 C.F.R. 110.5. . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19

11 C.F.R. 110.6. . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 40

11 C.F.R. 110.6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 39

11 C.F.R. 110.6(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . 39

11 C.F.R. 113.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . 22

11 C.F.R. 113.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

11 C.F.R. 113.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Bipartisan Campaign Reform Act of 2002, Pub. L.

107-155, 116 Stat. 81 (2002). . . . . . . . . . . . passim

FECA Amendments of 1976, Pub. L. No. 94-283,

90 Stat. 475 (1976).. . . . . . . . . . . . . . . . . . . . . . . 19

Federal Election Campaign Act. . . . . . . . . . . . passim

Pub. L. 96-187, 93 Stat. 1339 (1980). . . . . . . . . . . . 22

U.S. Constitution, amend. I. . . . . . . . . . . . . . . passim

Other Authorities

120 Cong. Rec. 27,224 (1974). . . . . . . . . . . . . . . . . . 44

Robert Bauer, The McCutcheon Case and the

Contribution/Expenditure Limit Problem,

More Soft Money Hard Law, Apr. 26, 2013,

http://www.moresoftmoneyhardlaw.com/

(x)
2013/04/contributions-and-expenditures-incampaign-finance-jurisprudence/. . . . . . . . . 10, 11

Center for Responsive Politics, Restore Our Future Contributors, http://www.opensecrets.org/pacs/ pacgave2.php?sort

=A&cmte=C00490045& cycle=2012&Page=1. . 12

FEC, Advisory Opinion 2010-09 (Club for Growth)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 40

FEC, Contribution Limits for 2013-2014. . . . . . . . . . 1

FEC, Matter Under Review 3620 (Democratic

Senatorial Campaign Committee). . . . . 29, 41, 49

FEC, Political Party Committees (2009).. . . . . . . . . 40

House Conference Report No. 94-1057, H.R. Rep.

No. 94-1057 (1976).. . . . . . . . . . . . . . . . . . . . . . . 22

Anupama Narayanswamy, Presidential campaign

donors moving to super PACs, Sunlight Reporting Group, Apr. 26, 2012, http://reporting.sunlightfoundation. com/2012/maxedout-donors/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

(xi)
Opinion Below

The Memorandum Opinion is in the Jurisdictional

Statement Appendix (“JS-App.”), at 1a, and at 893 F.

Supp. 2d 133. The Order and Final Judgment is at JSApp. 17a.

Jurisdiction

On September 28, 2012, the lower court entered

final judgment for the FEC. JS-App. 17a. Appellants

noticed appeal October 10. JS-App. 18a. This Court has

appellate jurisdiction under Bipartisan Campaign Reform Act (“BCRA”) § 403(a)(3) (JS-App. 21a).

Constitution, Statutes & Regulations

Appended hereto are U.S. Constitution, Amendment I; 18 U.S.C. 608(b) (1974); 2 U.S.C. 441a(a)(1)-(5),

(8); 2 U.S.C. 441f; 11 C.F.R. 100.5(g); 11 C.F.R.

110.4(b); 11 C.F.R. 110.5(a)-(b); and 11 C.F.R. 110.6.

Statement of the Case

Base limits restrict contributions to candidates, political parties, and PACs. 2 U.S.C. 441a(a)(1). Aggregate limits restrict individuals’ aggregate biennial contributions to these entities. 2 U.S.C. 441a(a)(3). See

MB-App. 17a (FEC, Contribution Limits for 2013-

2014).

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court

facially upheld an “overall $25,000 ceiling” on an individual’s aggregate contributions because it

serve[d] to prevent evasion of the $1,000 [base]

contribution limitation [on a contribution to a

candidate] by a person who might otherwise

contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees
2

likely to contribute to that candidate, or huge

contributions to the candidate’s political party.

Id. (emphasis added). This anti-circumvention concern

is in contrast to the anti-corruption interest on which

Buckley upheld the $1,000 base limit. Id. at 26. Crucially, Buckley posited a circumvention mechanism for

a conduit-contribution,1i.e., a “huge” contribution to a

political party or PAC, resulting in “massive” contributions to a “particular candidate.” This mechanism resulted from the Federal Election Campaign Act

(“FECA”) (2 U.S.C. 431 et seq.) scheme then in effect.

Buckley Scheme

$25,000

“Ceiling” on Individual Contributions

$1,000

/elec’n

(base limit)

Candidate PAC State Party

(dist/local)

National

Party

1

“Conduit-contribution” is used herein to refer to a contribution to a particular, intended candidate, resulting from

an unearmarked contribution to another entity that results

in the contribution to the candidate, without violating earmarking and name-of-another contribution laws. Earmarked contributions to candidates through intermediaries

are legal if all base limit and reporting requirements are

followed. See 11 C.F.R. 110.6 (“Earmarked contributions”).

MB-App. 12a.
3

See Buckley, 424 U.S. at 189-90 (1974 FECA text).

The Buckley-Scheme Chart, supra at 2, shows that

the scheme Buckley considered only had a base limit on

a contribution to a candidate. As Buckley noted, absent

the “ceiling” a “huge” contribution could go to a political party or PAC. 424 U.S. at 38. The “ceiling” was also

a base limit for contributions to PACs and political

parties—in whichsense Buckley described it as a “corollary” of the base limits. Id.

BCRA Scheme

$74,600 Aggregate Limit

$48,600

Aggregate

Limit

$48,600

Aggregate Limit

$2,600

/election

$5,000

/year

$10,000

/year

$32,400

/year

(base limit on individual contributions to entity)

Candidate PAC State Party

(dist/local)

National

Party

See MB-App. 17a.

Soon after Buckley, Congress eliminated Buckley’s

conduit-contribution mechanism by, inter alia, setting

base limits on contributions to PACs and political parties.SeePart II.B. BCRA made further changes, result-
4

ing in the scheme in the BCRA-Scheme Chart, supra at

3. See also MB-App. 18a (side-by-side Buckley- and

BCRA-Scheme Charts). Base limits are in place for

contributions to all types of political committees, with

aggregate limits layered atop those.

In upholding the challenged aggregate limits, the

lower courtignored this elimination of Buckley’s mechanism. The court did posit a mechanism, as Buckley’s

analysis requires, but it was not the conduit-contribution mechanism required by Buckley’s analysis, and it

was based on the forbidden gratitude theory of corruption.2

As set out in the Verified Complaint, McCutcheon

challenges the $74,600 (currently) aggregate limit on

contributions to non-candidate committees, 2 U.S.C.

441a(a)(3)(B), as unconstitutional—as applied to contributions to national party committees and facially.

He wants to express support for, and associate with,

non-candidate committees as permitted by the base

limits without an aggregate limit. But for this aggregate limit, McCutcheon would have contributed

$25,000 each to the Republican National Committee

(“RNC”), National Republican Senatorial Committee

(“NRSC”), and National Republican Congressional

Committee (“NRCC”) before the November 2012 election. When this case was brought, he had given $1,776

2

 The lower court acknowledged that “[g]ratitude . . . is

not itself a constitutionally-cognizable form of corruption,”

but it simultaneously relied on a candidate “know[ing] precisely where to lay the wreath of gratitude” in the court’s

hypothetical circumvention mechanism. JS-App. 12a (emphasis added). See Citizens United v. FEC, 130 S. Ct. 876,

909 (2010) (“Ingratiation and access . . . are not corruption.”).
5

each to RNC, NRSC, and NRCC, $2,000 to a PAC, and

$20,000 to a state party committee’s federal fund.

McCutcheonalso challenges thenow-$48,600 aggregate limit on contributions to candidate committees, 2

U.S.C. 441a(a)(3)(A), as unconstitutional. He wants to

express support for, and associate with, candidates as

permitted by the base limits without an aggregate

limit. When this case was filed, he had contributed

$33,088 to federal candidates and intended to contribute $21,312 more to federal candidates. But for this

aggregate limit, McCutcheon would have contributed

$54,400 to candidates.

RNC, a national party committee, also challenges

the $74,600 aggregate limit on contributions to noncandidate committees, 2 U.S.C. 441a(a)(B)—as applied

to contributions to national party committees and facially. RNC wants to receive the speech and association

of McCutcheon (and other contributors) as permitted

by the base limits without an aggregate limit.

FEC is the agency with enforcement authority over

FECA and BCRA.

Appellants intend materially similar future actions

if not limited by aggregate limits. Absent relief, they

will not act and so will be deprived of constitutional

rights and will be irreparably harmed without an adequate legal remedy.

On June 22, 2012, Appellants filed their Verified

Complaint. FEC moved for dismissal. On September

28, the lower court dismissed, entering judgment for

FEC. JS-App. 1a, 17a. On October 10, Appellants noticed appeal. JS-App. 18a.
6

Summary of the Argument

The challenged limits are unconstitutional under

the exacting scrutiny employed by the lower court, but

strict scrutiny should apply because aggregate limits

differ in kind from base limits, imposing greater burdens. Furthermore,the contribution/expenditure scrutiny dichotomy in Buckley, 424 U.S. at 25, 39-49,

should be overruled, modified, or held inapplicable to

aggregate limits.

The $74,600 aggregate limit on contributions to

non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is

unconstitutional as applied to national party committees. Buckley’s facial upholding of the old “ceiling” does

not controlthis case, but this Court’s conduit-contribution analysis in Buckley should be followed. 424 U.S. at

38. Buckley based its conduit-contribution mechanism

on (a) political-committee proliferation by the same

persons, (b)“huge” contributions to political party committees (or PACs), and (c) “massive” conduit-contributions. Post-Buckley FECA amendments eliminated

these elements of the mechanism. Under BCRA’s

changes, Buckley’s posited mechanism remains impossible, eliminating any conduit-contribution risk.

The $74,600 limitis facially unconstitutional due to

substantial overbreadth.

The $48,600 sub-limit on contributions to non-national party committees, 441a(a)(3)(B), should be

struck as non-severable.

The $48,600 aggregate limit on contributions to

candidates, 2 U.S.C. 441a(a)(3)(A), is also unconstitutional. Under Buckley’s required conduit-contribution

analysis, candidate committees posed no conduit-contribution risk when this Court decided Buckley and
7

they pose none now. Even under an anti-corruptioninterest analysis, there is no quid-pro-quo risk from

candidate Z knowing that an individual contributed

the base-level amount to candidates A-Y. The aggregate limit is overbroad as to any anti-corruption interest or the conduit-contribution concern, so it is not

properly tailored (closely or strictly) to the anti-corruption interest. 

Argument

I.

Aggregate Limits Fail Exacting Scrutiny,

Though Strict Scrutiny Should Apply.

Aggregate limits fail the exacting scrutiny that the

lower court chose, but strict scrutiny should apply.

Buckley decided that contribution and expenditure

limits “implicate fundamental First Amendmentinterests,” but the latter “impose significantly more severe

restrictions on . . . political expression and association.”

424 U.S. at 23. Based on this dichotomy, Buckley is

now commonly understood as applying exacting scrutiny to contribution limits, id. at 25, and strict scrutiny

to expenditure limits, id. at 39-49. See, e.g., FEC v.

Beaumont, 539 U.S. 146, 162 (2003).

The lower court cited Buckley’s contribution/expenditure scrutiny dichotomy and labeled aggregate limits

as mere “contribution limits.” JS-App. 6a-9a.3It applied exacting scrutiny, requiring only that the aggre3 Government “cannot foreclose . . . constitutional rights

by mere labels.” NAACP v. Button, 371 U.S. 415, 429 (1963),

followed in FEC v. Colorado Republican Fed. Campaign

Comm., 518 U.S. 604, 622 (1996) (“Colorado-I”).
8

gate limits be “‘closely drawn to match a sufficiently

importantinterest.’” JS-App. 6a-9a (citation omitted).4

However, aggregate limits fail under the exacting

scrutiny employed by the lower court. Exacting scrutiny is in fact an “exacting” test, and the government

should not be allowed to essentially argue a rationalbasis test. The lower court did not require the government to prove that the aggregate limits are supported

by a “sufficiently important interest,” let alone that

they are “closely drawn” to a cognizable interest, or

that the government has “avoid[ed] unnecessary

abridgement” of First Amendment rights. Buckley, 424

U.S. at 25.

But aggregate limits materially differ from, and

impose greater burdens than, ordinary contribution

limits. So higher scrutiny should apply.

A. Aggregate Limits Should Not Be Treated as

Mere Base Contribution Limits.

Since aggregate limits impose greater burdens than

base limits, there is no principled way to apply the

same scrutiny. They differ in two key respects.

First, they have different justifications. The justification for a base limit is the quid-pro-quo risk, Buckley,

424 U.S. at 26, based on the fact that a particular candidate receives the contribution. But an aggregate limit

restricts an individual’s total contributions, not any

contribution received by a particular candidate, so

Buckley required a conduit-contribution risk to justify

it. Id. at 38. Thus, the limits differ in kind. Cf. id. at 30

(even “distinctions in degree become significant . . .

when they . . . amount to differences in kind”).

4

 The court ignored the requirement to “avoid unnecessary abridgement.” Buckley, 424 U.S. at 25.
9

Second, while base limits restrict how much one

may contribute to particular candidates, political parties, or PACs, aggregate limits restrict how many such

entities one may support at the full-base-limit amount

(what Congress contemplates an individual being able

to give). Buckley agreed that the “ceiling” limited the

“number of candidates and committees with which individualsmay associate,”though it held this restriction

justified by a conduit-contribution risk. Id. at 38.5

Buckley’s statements, however, do not justify current

aggregate limits. See Part II. But Buckley does acknowledge that the burdens differ. Thus, applying the

same scrutiny based on mere labeling is erroneous.

The Buckley- and BCRA-Scheme Charts, MB-App.

18a, show how the scheme has changed. With base limits for all entities, BCRA layers aggregate limits atop

them, restricting how much an individual may spend

on political expression and association at the full-baselimit level. Thus, though the aggregate limits are not

expenditure limits in the sense of directly limiting an

individual’s expenditures for, e.g., ads, they are more

in the nature of an expenditure limit than a contribution limit, and expenditure limits are per seunconstitutional. Randall v. Sorrell, 548 U.S. 230, 242-46 (2006)

(plurality).

The fact that aggregate limits are not actually contribution limits is well stated by Bob Bauer:

5 This refutes any notion that aggregate limits impose

no association burden because one may associate with many

candidates or committees at lower levels. Burdens should

be analyzed on the basis of full-base-level contributions,

above which Congress asserted no cognizable interest.
10

[T]he [aggregate limit] is not [the] same as a

contribution limit in the traditional sense. Most

contributions are made specifically to someone

or some entity, and the limit on contributions

decreases the risk of corrupting that particular

someone or entity. The overall limit might seem

more like a ceiling on spending. The individual

subject to this limit is unable to spend more

than an amount fixed by statute for all her contributions in the aggregate. The result is an aggregate limit which smacks of a spending limit

. . . .”

Robert Bauer, The McCutcheon Case and the Contribution/Expenditure Limit Problem, More Soft Money

Hard Law, Apr. 26, 2013, http://www.moresoftmoneyhardlaw.com/2013/04/contributions-and-expenditures-in-campaign-finance-jurisprudence/(emphasis in

original).

Bauer then notes that aggregate limits are sometimes deemed contribution limits because they are 

part of a package aiding enforcement. But he explains

why that logic fails, based on the history of the spending limit in Buckley:

[A]n aggregate limit . . . is assumed to be a contribution limit because it aids enforcement of

such limits (the base limits). But this logic does

not hold up well. In the Buckley case, the limit

on aggregate spending was argued as necessary

to enforce the contribution limits. The Court of

Appeals had held that “We . . . uphold the expenditure ceilings imposed by [citation omitted]

as an essential ingredient in the regulatory

scheme propounded by this comprehensive legislation, one which reduces the incentive to cir-
11

cumvent direct contribution limits and bans.”

(Buckley v. Valeo, 519 F.2d 821, [858-59 (D.C.

Cir. 1975)]). The Supreme Court rejected this

rationale in the case of this [expenditure] limit.

But this history illustrates the larger point that

a limit’s function in enforcing contribution limits

does not mean that it is, by definition, a contribution limit.

Id. (emphasis in original).6

In FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001) (“Colorado-II”), Justice

Thomas, joined by Justice Scalia, called for the overruling of Buckley’s contribution/expenditure scrutiny dichotomy because strict scrutiny should extend to all

core political activity, i.e., “the core speech and associational rights that our Founders sought to defend,” id.

at 465-66 (dissenting) (collecting cases).

7 This Court

should overrule Buckley’s scrutiny dichotomy in this

case. Alternatively, precedent requires strict scrutiny

under two other approaches. Infra Parts I(B)-(C).

6

 Furthermore, this Buckley history demonstrates that

limits must be scrutinized separately, not as part of “a coherent system” as the lower court did here. JS-App. 13a.

7 See also Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 192 n.12 (1999); id. at 206, 214

(Thomas, J., concurring in the judgment). See also Randall,

548 U.S. at 242-44 (2006) (plurality); id. at 263 (Alito, J.,

concurring in part and concurring in judgment); id. at 264

(Kennedy, J., concurring in judgment); id. at 266 (Thomas,

J., joined by Scalia, J., concurring in judgment).
12

B. Under Buckley’s Scrutiny Dichotomy, Strict

Scrutiny Applies Because the Speech Burden

Is Cognizable.

If this Court retains its contribution/expenditure

scrutiny dichotomy, it should apply strict scrutiny because aggregate limits impose greater speech burdens

than base limits. Precedent requires strict scrutiny

where such a cognizable speech burden exists.

Buckley recognized that base limits burden both

expression and association rights, 424 U.S. at 23, but

decided that a “limitation upon the amount that any

. . . person . . . may contribute to a candidate or political committee entails only a marginal restriction upon

the contributor’s . . . free communication,” id. at 20

(emphasis added). This addresses contributions “to”

political entities, not total contributions. It applies to

base, not aggregate, limits.

Furthermore, it is no longer true “that the contribution limitations . . . have [no] dramatic adverse effect

on the funding of campaigns and political associations.”

Buckley, 424 U.S. at 21. While candidates and political

parties raise substantial funds, they are increasingly

being disadvantaged and marginalized vis-a-vis superPACs,8 which are not subject to aggregate limits.9 The

8 Restore Our Future, the leading super-PAC in 2012 (in

fundraising and expenditures), had numerous individual

donors giving it over $1 million, with some, like casino-magnate Sheldon Adelson and his wife, giving as much as $5

million each. CRP, Restore Our Future Contributors,

http://www.opensecrets.org/pacs/pacgave2.php?sort

=A&cmte=C00490045&cycle=2012&Page=1.

9 Super-PACs are PACs that only make independent

expenditures (not contributions) and which may receive

(continued...)
13

situation has changed since Buckley. And once a contributor has made a base-level contribution to nine

candidates for both primary and general elections (dividing $48,600 by $5,200, see supra at i), or eighteen

different candidates for single elections, the contributor cannot contribute to another, reducing that candidate’s political speech, which cannot be made up by

“merely . . . rais(ing) funds from a greater number of

people.” Buckley, 424 U.S. at 22.

Nor can individuals make up for their inability to

make full-base-level contributions to as many candidates and political parties as they choose by volunteering to work for candidates and political parties. That

might work where a single candidate or national party

committee is involved, as with a base limit. But where

an individual seeks to make full-base-level contributions to more than nine (or eighteen) candidates and to

all three Republican national party committees, the

option fails—time and energy preclude it.

Buckley indicated that where a cognizable speech

burden is involved, higher scrutiny applies, id. at 23,

39-49, and as a result, this Court has applied strict

scrutiny even to contribution limits. See Citizens

Against Rent Control v. Berkeley, 454 U.S. 290, 300

(1981) (“to limit the right of association places an impermissible restraint on . . . expression.”); Randall, 548

U.S. at 261 (limit “so restrictive as to bring about . . .

serious associational and expressive problems”).

9

 (...continued)

unlimited contributions, including contributions earmarked

for specific independent expenditures. See FEC, Advisory

Opinion 2010-09 (Club for Growth) at 5, available through

http://saos.nictusa.com/saos/searchao.
14

C. Alternatively, Strict Scrutiny Should Apply

Under Substantial-Burden Analysis.

Ifthis Court decides that Buckley’s contribution/expenditure scrutiny dichotomy is no longer useful but

does not decide to strictly scrutinize all campaign-finance laws, it should apply strict scrutiny here because

the aggregate limits impose a substantial burden. This

occurred in recent decisions, including one involving

contribution limits. See Davis v. FEC, 554 U.S. 724,

744 (2008) (“strength of . . . interest must reflect . . .

seriousness of . . . actual burden on First Amendment

rights”); Arizona Free Enterprise Club’s Freedom Club

PAC v. Bennett, 131 S. Ct. 2806, 2813 (2011) (“Arizona’s . . . scheme substantially burdens protected political speech without serving a compelling state interest”).

In sum, if the aggregate limits are labeled mere

contribution limits and subjected to exacting scrutiny,

they fail that exacting scrutiny. But this Court should

apply strict scrutiny, and it should overrule Buckley’s

contribution/expenditure scrutiny dichotomy. And this

Court should require the government to actually meet

its scrutiny burden, which the lower court did not do.

II.

The $74,600 Aggregate Limit on Contributions to

Non-Candidate Committees Is Unconstitutional

as Applied to National Party Committees.

The $74,600 aggregate limit on contributions to

non-candidate committees, 2 U.S.C. 441a(a)(3)(B), violates First Amendment free speech and association
15

rights as applied to contributions to national party

committees.10

The aggregate limit serves no permissible purpose.

In Buckley, this Court upheld a “ceiling” on individuals’

aggregate contributions, 424 U.S. at 38, but that holding does not control here. However, this Court should

follow its analysis in Buckley, id., under which the aggregate limit is unconstitutional.

A. Buckley’s Facial Upholding of the “Ceiling”

Does Not Control this Case, but this Court

Should Apply Buckley’s Analysis.

Buckley recognized the core First Amendment

rights at issue here. “[C]ontribution and expenditure

limitations . . . [affect] the most fundamental First

Amendment activities.” Id. at 14. “[T]he First . . .

Amendment[] guarantees freedom to associate with

others for the common advancement of political beliefs

and ideas, a freedom that encompasses (t)he right to

associate with the political party of one’s choice.” Id. at

15 (citations and quotation marks omitted). “Making a

contribution, like joining a political party, serves to

affiliate a person with a candidate [or a political party].

. . . [I]t enables like-minded persons to pool their resources in furtherance of common political goals.” Id.

at 22.

Buckley rejected a constitutional challenge to a “ceiling” on an individual’s contributions. Id. at 38. That

10 Appellant addresses 441a(a)(3)(B) before 441a(a)(3)(A)

because the analysis begins with Buckley’s conduit-contribution analysis and posited mechanism, 424 U.S. at 38,

which identified concerns with political party committees

(and PACs), not candidate committees. So the analysis first

shows the elimination of Buckley’s conduit-contribution

concern and mechanism.
16

holding does not control here because Buckley involved

a facial challenge and Congress materially altered the

statutory context by enacting new base limits and by

replacing the “ceiling” with multiple aggregate limits.

But this Court’s analysis in Buckley should be followed here. That analysis involves three key factors.

First, that analysis requires the government to

prove a conduit-contribution risk (not the quid-pro-quo

risk this Court applied to base limits, id. at 26). While

the conduit-contributionriskderives from the quid-proquo risk, the quid-pro-quo risk does not arise unless a

“ large contribution [is] given to secure a political quid

pro quo from current and potential office holders,” i.e.,

a “large” contribution is actually “given” to a candidate. Id. (emphasis added). However, base limits prevent “large” contributions and an aggregate limit restricts what a contributor can spend on political contributions—not what is given to a candidate. So the

government must specifically prove a “large”-conduitcontribution risk and may not meet its burden with

broad-brush theories of corruption instead.

Second, Buckley’s analysis requires the government

to prove this conduit-contribution risk by a mechanism

showing howa “large” conduit-contribution might actually get to a particular, intended candidate with everyone abiding by existing laws. Id. at 38. This mechanism fails per se if it tries to show something other

than a conduit-contribution risk, e.g., that some candidate might be grateful.

Third, Buckley’s analysis requires that the mechanism be based on the function of the aggregate limit

itself. Id. That was the case with Buckley’s mechanism

because the “ceiling” filled base-limit gaps. See MBApp. 18a. The “ceiling” actually provided the base lim-
17

its for political parties (and PACs), preventing “huge”

contributions to them. 424 U.S. at 38. This Court based

its mechanism in Buckley on this function of the “ceiling” itself.

Key to Buckley’s mechanism was the fact that

FECA had only these applicable limits, see id. at 189:

• $1,000/election person-to-candidate base limit;

• $5,000/election limit on a contribution by a multicandidate political committees to a candidate;

• $25,000/biennium “ceiling” on all an individual’s

contributions.

See MB-App. 18a.

There were no limits on contributions to political

party committees and PACs other than the “ceiling.”

Absent that “ceiling,” individuals could give unlimited

amounts to political parties (and PACs). Also missing

was a restriction on political-committee proliferation

by the same entities. See infra at 17-18. Buckley upheld the “ceiling” facially, in that context (though it

was “not . . . separately addressed at length by the parties”). Id. at 38. The key was Buckley’s posited conduitcontribution mechanism:

The . . . ceiling . . . . prevent[s] evasion of the

$1,000 contribution limitation by a person who

might otherwise contribute massive amounts of

money to a particular candidate through the use

of unearmarked contributions to political committees likely to contribute to that candidate, or

huge contributions to the candidate’s political

party.

Id. (emphasis added).

Essentialto this analysis is the Court’s earlier highlighting of the political-committee proliferation prob-
18

lem, which, the Court noted (regarding the base limit’s

tailoring), left “persons free . . . to assist to a . . . substantial extent in supporting candidates and committees with financial resources [FN31].” Id. at 28. The

Court explained political-committee proliferation:

[FN 31] While providing significant limitations

on the ability . . . to contribute large amounts of

money to candidates, the Act’s contribution ceilings do not foreclose . . . making . . . substantial

contributions to candidates by some major special-interest groups through the combined effect

of individual contributions from adherents or

the proliferation of political funds each authorized under the Act to contribute to candidates.

. . . [FECA] permits corporations and labor unions to establish segregated funds . . . for political purposes. . . . Each separate fund may contribute up to $5,000 per candidate per election

. . . .

The Act places no limit on the number of

funds that may be formed through the use of subsidiaries or divisions of corporations, or of local

and regional units of a national labor union. The

potential for proliferation of these sources of contributions is not insignificant. . . .

Id. at 28 n.31 (emphasis added; citations omitted).

In sum, the analytical key to Buckley’s facial upholding is its posited conduit-contribution mechanism

based on (a) political-committee proliferation by the

same entities, (b) a “huge” contribution to a political

party (or PAC), and (c) a resulting capability for “massive” conduit-contributions from an individual to a particular, intended candidate.
19

B. Congress Fixed Buckley’s Posited ConduitContribution Mechanism.

Congress promptly eliminated Buckley’s conduitcontribution concern and mechanism. It eliminated

“huge” contributions to political parties (or PACs) by

adding new limits on contributions to and by entities:

• $1,000/election person-to-candidate base limit;

• (new) $20,000/year base limit by “persons” to national party committees;

• (new) $5,000/year base limit by “persons” to other

political committees;

• by “multicandidate committees”11 as follows—

- $5,000/election to candidates,

- (new) $15,000/year to national party committees, 

- (new) $5,000/year to other political committees;

• $25,000/biennium “ceiling” on all an individual’s

contributions.12

See FECA Amendments of 1976, Pub. L. No. 94-283, 90

Stat. 475 (1976). See also 2 U.S.C. 441a(a)(1).

Thesenewlimits,without more, eliminate Buckley’s

conduit-contribution concern and mechanism. These

limits represent the level at which Congress recognized

and asserted relevant interests. Only a “large” contribution to a candidate triggers the quid-pro-quo risk.

424 U.S. at 23-27. The concern supporting limits on

contributions to political parties and PACs is Buckley’s

conduit-contribution risk, id. at 38, but only “huge”

11 See 11 C.F.R. 100.5(e)(3) (definition).

12 Because the new base limits eliminated the conduitcontribution concern and mechanism on which this Court

justified the “ceiling,” the “ceiling” no longer served any

permissible purpose. Yet it remained.
20

contributions to political parties (or PACs)trigger that

“massive”-conduit-contribution risk. Id. at 38. Thus,

Congress’s limits on contributions to and by these entities were the level at which Congress asserted its anticorruption interest and conduit-contribution concern.

In other words, these limits fix the “huge” and “massive” contribution problems that Buckley identified.

This leaves no justification for aggregate limits to purportedly fix these same problems.

Furthermore,FEC cannot meets its burden to prove

a conduit-contribution mechanism by relying on transfers.

13 When Congress fixed the conduit-contribution

problem, it expressly exempted “transfers” from its

new contribution limits: “The limitations on contributions . . . do not apply to transfers between and among

political parties which are national, State, district, or

local committees . . . of the political party.” 2 U.S.C.

441a(a)(4). See MB-App. 4a. Thus, Congress perceives

no conduit-contribution risk in transfers between federal committees of the same political party—or of any

affiliated committees. 11 C.F.R. 110.3(c)(1). So Congress asserted no conduit-contribution (or other) concern regarding these transfers. This is logical because

hard money does not raise the concerns Congress identified with soft money: “[P]rohibiting parties from donating funds already raised in compliance with FECA

does little to further Congress’ goal of preventing corruption or the appearance of corruption of federal can13 Unlimited funds may be transferred between political

parties, from candidates to political parties, and between

affiliated committees (“transfers” are not included within

the “contribution” definition). See 11 C.F.R. 110.3(c). The

lower court relied on transfers for its hypothetical mechanism. JS-App.12a.
21

didates and officeholders.” McConnell v. FEC, 540 U.S.

93, 179 (2003). “We have found no evidence that Congress was concerned about . . . money . . . regulated by

FECA.” Id. at 180. Congress having asserted no interest regarding transfers, FEC may not now claim that

transfers raise corruption or conduit-contribution concerns.

Thus, two of the factors key to Buckley’s conduitcontribution mechanism were eliminated by these new

limits—(1) the ability to give a “huge contribution to a

political party committee (or PAC) and thereby (2) the

ability to trigger a “massive” conduit-contribution to a

particular, intended candidate.

Congress also eliminated the third factor in Buckley’smechanism—political-committeeproliferation.The

1976 Conference Report described the new anti-circumvention, anti-proliferation rules as follows:

The anti-proliferation rules . . . are intended to

prevent . . . persons or groups . . . from evading

the contribution limits . . . . Such rules are described as follows:

1. All . . . political committees set up by a

single corporation and its subsidiaries are treated as a single political committee.

2. All . . . political committees set up by a

single international union and its local unions

are treated as a single political committee.

3. All . . . political committees set up by the

AFL-CIO and all its State and local central bodies are treated as a single political committee.

4. All . . . political committees established by

the Chamber of Commerce and its State and
22

local Chambers are treated as a single political

committee.

5. The anti-proliferation rules stated also

apply in the case of multiple committees established by a group of persons.

H.R. Rep. No. 94-1057, at 58 (1976) (emphasis added).

14

In 1980, Congress did two further things related to

Buckley’s analysis. It barred “personal use” of candidate campaign funds and expressly authorized candidate “transfers without limitation to any . . . political

party.” Pub. L. 96-187, § 113, 93 Stat. 1339. When this

Court decided Buckley, candidates could use contributions “for any . . . lawful purpose,” 424 U.S. at 179, including personal use. That is now impossible, reducing

any quid-pro-quo risk. 11 C.F.R. 113.1(g), 113.2 (defining and barring “personal use”).15 Permitting unlimited

candidate transfers to political parties means that Congress perceives, and asserts, no conduit-contribution or

other risk in such transfers.

Because this Court upheld one of Congress’s postBuckley cures for the conduit-contribution risk and

mechanism, those cures remain in place and effective.

The $5,000/year limit on contributions to a PAC was

upheld in California Medical Association v. FEC, 453

U.S. 182 (1981) (“Cal. Med.”), based on a conduit-con14 Affiliated committees share a contribution limit, and

FEC may consider numerous factors to identify affiliation.

11 C.F.R. 100.5(g), 110.3(a). See MB-App. 8a-9a.

15 Cf. FEC v. Craig, No. 12-0958, 2013 WL 1248271,

(D.D.C. Mar. 28, 2013) (re impermissible use of campaign

funds by former Sen. Craig for legal defense unrelated to

official duties).
23

tribution risk. Id. at 197-99 (plurality); id. at 203

(Blackmun, J., concurring in part and in judgment).16

The plurality recited legislative history declaring that

the 1976 amendments were to eliminate circumvention

and political-committee proliferation:

The Conference Report . . . specifically notes:

“The conferees’ decision to impose more precisely defined limitations on the amount an

individual may contribute to a political committee . . . and to impose new limits on the

amount a person or multicandidate committee may contribute to a political committee

. . . is predicated on the following considerations: first, these limits restrict the opportunity to circumvent the $1,000 and $5,000 limits on contributions to a candidate; second,

these limits serve to assure that candidates’

reports reveal the root source of the contributions the candidate has received; and third,

these limitations minimize the adverse im16 CMA argued that contributors should be able to make

unlimited contributions to multicandidate PACs, to which

the plurality replied that eliminating the base limit would

reinstate Buckley’s conduit-contribution risk,including evasion of the $25,000-ceiling, “since such committees are not

limited in the aggregate amount they may contribute in any

year. These concerns prompted Congress to enact § 441a(a)

(1)(C) . . . to protect the integrity of the contribution restrictions upheld . . . in Buckley.” Cal. Med., 453 U.S. at 197-99

(plurality). The plurality’s comment in Cal. Med. about the

“ceiling” does not control here because it is not a court opinion, it does not deal with the new aggregate limits, and the

ceiling’s constitutionality was not at issue. Vitally, because

the Court upheld the PAC base limit, Buckley’s conduit-contribution mechanism remains eliminated.
24

pact on the statutory scheme caused by political committees that appear to be separate

entities pursuing their own ends, but are actually a means for advancing a candidate’s

campaign.”

Cal. Med., 453 U.S. at 198 n.18 (emphasis added; citation omitted).

In sum, Congress eliminated the conduit-contribution mechanism that Buckley posited to uphold the

“ceiling.”Congress having fixed Buckley’s conduit-contribution concern and mechanism—which this Court

deemed the justificationfor the old“ceiling”—that “ceiling” is no longer justified, nor is any other aggregate

limit on an individual’s total contributions.

C. In BCRA, Congress Repealed and Replaced

the “Ceiling” with Multiple Aggregate limits.

In BCRA § 307(b), 116 Stat. 102-03, Congress repealed and replaced the “ceiling” with multiple aggregate limits. See MB-App. 18a. But the new aggregate

limits are no more justified now than the “ceiling.”

D. The $74,600 Aggregate Limit Lacks a Cognizable Interest as Applied to National Party Committees.

The aggregate limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional as applied to national party committees. The

aggregate limit serves no permissible purpose. Lacking

such a purpose, it is not properly tailored (neither

closely nor narrowly) to a cognizable interest (neither

sufficiently important nor compelling).
25

1. The Anti-Corruption Interest Is Not Directly Implicated.

“[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” FEC v. National Conservative PAC,

470 U.S. 480, 496-97 (1985) (“NCPAC”). “Corruption”

is limited: “Elected officials are influenced to act contrary to their obligations of office by the prospect of

financial gain to themselves or infusions of money into

their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id. at

497. Citizens United again limited “corruption” to quidpro-quo corruption, rejecting influence, access, gratitude, and leveling-the-playing-field as cognizable corruption. 130 S. Ct. at 909-12.

However,the anti-corruption interest is not directly

implicated with contributions to national party committees because it “is implicated by contributions to

candidates.”EMILY’s List v. FEC, 581 F.3d 1, 6 (D.C.

Cir. 2009)) (emphasis in original). Cognizable quid-proquo corruption is based on a financial benefit to a particular candidate in such a “large” amount, Buckley,

424 U.S. at 26, as to cause a candidate “to act contrary

to [the candidate’s] obligations of office,” NCPAC, 470

U.S. at 497. Only if a large contribution is actually received by a particular candidate is the quid-pro-quo

risk directly implicated. 

Because the anti-corruption interest is not directly

implicated with aggregate limits, Buckley required

that the government show a mechanism explaining

how a conduit-contribution could actually get to a particular, intended candidate. This Court required that

conduit-contribution mechanism to justify the aggre-
26

gate “ceiling,” 424 U.S. at 38, not the anti-corruption

interest applicable to base limits, id. at 26.

Furthermore, national party committees pose no

inherent quid-pro-quo risk to their candidates. See

Colorado-I, 518 U.S. at 616 (“Breyer, J., joined by

O’Connor & Souter, JJ.) (“We are not aware of any special dangers of corruption associated with political parties . . . .”); id. at 646 (Thomas, J., joined by Rehnquist,

C.J., and Scalia, J., concurring in judgment and dissenting in part).17 Thus, just as in Colorado-I, where an

anti-corruption interest could not be used as a basis to

prohibit political party committee independent expenditures, here it cannot be used to limit contributions to

national party committees because there is no quidpro-quo risk. See also Colorado-II, 533 U.S. at 456 (relying on anti-circumvention concern in upholding limit

on party expenditures coordinated with candidates).

2. No Conduit-Contribution Concern Exists.

Under this Court’s analysis in Buckley, FEC must

prove a specific mechanism by which the conduit-con17

As applied in the specific context of campaign funding by political parties, the anti-corruption rationale

loses its force. . . . What could it mean for a party to

“corrupt”its candidate or to exercise “coercive” influence over him? The very aim of a political party is to

influence its candidate’s stance on issues and, if the

candidate takes office or is reelected, his votes.

When political parties achieve that aim, that

achievement does not, in my view, constitute “a subversion of the political process.”

Id. at 646 (Thomas, J., joined by Rehnquist, C.J., and

Scalia, J., concurring in judgment and dissenting in part)

(citations omitted).
27

tribution risk might arise. FEC has proven none. There

is none.

This Court recognized that Congress may take prophylactic measures to prevent circumvention of the

contribution limits that eliminate the quid-pro-quo

risk.18 But the anti-circumvention interest does not

justify the $74,600 aggregate limit as applied to contributions to national party committees.

(a) The Government’s Ability to Assert a

Conduit-Contribution Concern Is Limited in Scope.

Just as cognizable corruption is strictly limited, see

Citizens United, 130 S. Ct. at 909-10, cognizable circumvention, i.e., a conduit-contribution risk, is also

limited—in four ways.

First, because the government’s ability to prevent

a conduit-contributionriskis derivative and prophylactic, there must first be a cognizable, underlying quidpro-quo risk. Since Buckley held that only “large contributions” trigger a quid-pro-quo risk, 424 U.S. at 26,

any conduit-contribution mechanism must allow an

individual to get a “large” conduit contribution to a

particular, intended candidate (without any sort of earmarking) in order to trigger a risk. This Court recognized this requirement by requiring that a conduit-contribution mechanism allowanindividualto “contribute

massive amounts of money to a particular candidate

through the use of unearmarked contributions to political committees likely to contribute to that candidate, or

18 The base limits are themselves “preventative,” Citizens United, 130 S. Ct. at 908, as are limits on contributions

by political party committees, PACs, and candidate committees, making aggregate limits a prophylaxis-on-prophylaxis.
28

huge contributions to the candidate’s political party,”

id. at 38 (emphasis added).

Given the requirement of massive contributions for

a cognizable conduit-contribution concern, the tiny percent of a contribution by a national party committee to

a candidate that might be deemed attributable on a

prorated basis to the contributor of an unearmarked,

base-level amount to the national party committee

would not be cognizable as a conduit-contribution. If an

individual gave $1,000 to a national party committee

that received $1,000,000, her share of the million

would be 0.1%. If that committee contributes $5,000 to

a candidate, then a prorated portion of that contribution might be deemed attributable to that individual.

Multiplying $5,000 by 0.1%, reveals that $5 might be

deemed attributable to that individual. But that prorated amount is not cognizable for a conduit-contribution analysis for two reasons: (a) it is neither “large”

nor “massive” and so cannot trigger the quid-pro-quo

risk and (b) it is at a level approved by Congress when

Congress set limits on contributions to national party

committees and on contributions by national party

committees. So such a prorated share of a contribution

to a candidate resulting from activity within the limits

set by Congress raises neither a quid-pro-quo interest

nor a conduit-contribution concern.

Moreover, no underlying interest in preventing

quid-pro-quo corruption would be triggered if anunearmarked conduit-contribution could not be clearly attributed to a particular individual intending to benefit

a particular candidate, because otherwise there would

be no underlying quid-pro-quo risk. Such “attribution”

occurs when there is earmarking (which is broadly defined, see infra at 38-40), but it does not occur where
29

there is a mere assignment of credit, e.g., a “tallying”

system.19 This is clear from FEC’s recent decision in

Matter Under Review (“MUR”) 3620 (DemocraticSenatorial Campaign Committee (“DSCC”)),

20 wherein FEC

made clear that absent earmarking (a) a national party

committee may do what it wants with contributions to

it that are tallied to the credit of a particular candidate, (b) that such tallied contributions are not implicitly earmarked, and (c)thattallied contributions do not

trigger a quid-pro-quo or conduit-contribution risk. See

infra at 41-42 (discussing MUR 3620).

Second, the government must prove that “harms

are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and

material way.” Turner Broadcasting Sys. v. FCC, 512

U.S. 622, 664 (1994) (citation omitted). So any suggested conduit-contributionmechanism andunderlying

quid-pro-quo risk must be proven, not based on speculation.

Third, just as “[r]eliance on a ‘generic favoritism or

influence theory . . . is at odds with . . . First Amendment analyses because it is unbounded and susceptible

to no limiting principle,’” Citizens United, 130 S. Ct. at

910 (citation omitted), so there can be no generic “circumvention” theory lacking a “limiting principle.”

Fourth, while true circumvention cannot be based

on citizens changing from now-barred political activity

to yet-legal activity, such avoidance (not evasion) can

be a reason to overturn restrictions, not multiply them:

19

 The lower court cited a tallying scheme for its assertion that “it is not hard to imagine a situation where parties

implicitly agree [to serve as conduits].” JS-App. 12a.

20 Available through http://fec.gov/em/mur.shtml.
30

Political speech is so ingrained in our culture

that speakers find ways to circumvent campaign

finance laws. See, e.g., McConnell[, 540 U.S. at]

176-177 (“Given BCRA’s tighter restrictions on

the raising and spending of soft money, the incentives . . . to exploit [26 U.S.C. 527] organizations will only increase[.]”). Our Nation’s speech

dynamic is changing, and informative voices

should not have to circumvent onerous restrictions to exercise their First Amendment rights.

Citizens United, 130 S. Ct. at 912 (emphasis added). So

if would-be contributors to national party committees

are restricted by aggregate limits and instead give to

super-PACs,21 that kind of “circumvention” requires

careful examination of whether the aggregate limits

are constitutionally justified.22

Even where there is a conduit-contribution risk,

“Congress may not choose an unconstitutional remedy.” Citizens United, 130 S. Ct. at 911. If the ability to

move “massive” unearmarked conduit-contributions to

a particular candidate is already eliminated by postBuckley amendments, there remains no justification

for additional prophylaxes. This is clear from the prohibition on layering “prophylaxis-upon-prophylaxis” ar21 See, e.g., Anupama Narayanswamy, Presidential campaign donors moving to super PACs, Sunlight Reporting

Group, Apr. 26, 2012, http://reporting.sunlightfoundation.

com/2012/maxed-out-donors/.

22 Buckley applied this “circumvention” principle in rejecting anindependent-expenditure limit. 424 U.S. at 45-47.

“Rather than preventing circumvention of the contribution

limitations, [the limit] severely restricts all independent

advocacy despite its substantially diminished potential for

abuse.” Id. at 47.
31

ticulated in FEC v. Wisconsin Right to Life, 551 U.S.

449, 479 (2007) (“WRTL-II”) (Roberts, C.J., joined by

Alito, J.) (controlling opinion). WRTL-II rejected the

argument “that an expansive definition of ‘functional

equivalent’ [wa]s needed to ensure that issue advocacy

does not circumvent the rule against express advocacy,

which in turn helps protect against circumvention of

the rule against contributions.” Id. at 479. WRTL-II

heldthatthe “prophylaxis-upon-prophylaxis approach”

. . . is not consistent with strict scrutiny.” Id.

Nor is layering prophylaxes consistent with the

exacting scrutiny tailoring requirement that any contribution “limitation [be] no broader than necessary to

achieve th[e governmental] interest,” Cal. Med., 453

U.S. at 203 (Blackmun, J., concurring in part and in

judgment) (controlling opinion), or that the government “avoid unnecessary abridgement of associational

freedoms,” Buckley, 424 U.S. at 25. An aggregate limit

is inadequately tailored and too broad if a base limit

eliminates conduit-contribution risks.

(b) Buckley Requires Examination of the

Potentialfor Political-Committee Proliferation, “Huge” Contributions, and

Conduit-Capability.

Applying these principles limiting a cognizable

conduit-contribution risk and remedy, we return to

whether a conduit-contribution concern justifies the

$74,600 aggregate limit as applied to national party

committees.23

23 Congress saw political parties as posing little conduitcontribution risk because it created a higher limit on contributions to them and gave them extra spending authority.

See MB-App. 17a.
32

This requires returning to Buckley’s analysis in facially upholding the old “ceiling.” See supra at 15-18.

This Court’s analysis pointed to a conduit-contribution

mechanism. Employing that analysis in searching for

a conduit-contribution mechanism here, as applied to

national party committees, Buckley’s analysis requires

consideration of three questions:

• Is political-committee proliferation by national

party committees possible?

• Can a “huge contribution” be made to a national

party committee?

• Can a national party committee be a vehicle for a

“massive” conduit-contribution to a particular candidate?24

(c) Congress Imposed a Political-Committee Proliferation Prophylaxis.

Beginning with Buckley’s concern about politicalcommittee proliferation, is it possible to make a “massive” conduit-contribution to a candidate through a

proliferation of political committees by the same persons? No. Buckley’s specific concern was with a proliferation of PACs, see 424 U.S. at 28 n.31, but the 1976

FECA amendments eliminated all political-committee

proliferation by the same entities. FEC has detailed

“affiliation” rules preventing this proliferation. 11

C.F.R. 100.5(g).25

24 Only arguments applicable to national party committees are relevant to this as-applied challenge (though Congress fixed Buckley’s concerns broadly). So, e.g., an argument that there are now more PACs is irrelevant here.

25 The “affiliated committee” definition establishes

which committees “shar[e] a single contributionlimitation.”

(continued...)
33

As relevant here, national party committees of the

same political party are not affiliated, 11 C.F.R.

100.5(g)(3)(iv), but only three Congress-approved national party committees are permitted per national

political party—a national committee, a Senate campaign committee, and a House campaign committee, 11

C.F.R. 110.3(b)(1)-(2). Congress gave them separate

limits on contributions received and made.26 And Congress expressly declined to limit transfers between

them—indicating Congress’s judgment that national

party committees pose no cognizable corruption or

conduit-contribution risk based on these hard-money

limits. RNC, NRSC, and NRCC are, in fact, separate

legal entities with separate histories, governing bodies,

and focuses. Verified Complaint (“VC–”) ¶¶ 43-58.

They have their own agendas, e.g., RNC focuses primarily on presidential elections and party matters,

NRSC focuses on electing Republican senators, and

NRCC focuses on electing Republican representatives.

VC–¶¶ 43-46. So there is no reason to treat them as

one for the $74,600 aggregate limit.

25

 (...continued)

11 C.F.R. 100.5(g)(3). All committees run by the same entities are “affiliated.” Id. FEC broadly defines factors it considers in determining “affiliation,” including formal and

informal control, control over employees, overlapping membership, overlapping officers or employees, funding relationships, founding relationships, and patterns of contributions

and contributors. 11 C.F.R. 100.5(g)(4). See MB-App. 7a-9a.

See also 11 C.F.R. 110.3(a) (same factors).

26 National party committees have Congress-approved

separate limits on contributions, e.g., each may receive

$32,400/year from an individual and each may contribute

$5,000/election to a candidate. MB-App. 17a.
34

In sum, it is now impossible to move massive

conduit-contributions to candidates through a proliferation of political committees created by the same persons, and there are only three, unique national party

committees per political party—all expressly approved

by Congress.

(d) Congress Imposed a Huge-Contribution Prophylaxis.

Turning to Buckley’s conduit-contribution concern

about “huge” contributions to national party committees, is it possible now for an individual to make a

“huge contribution[]” to a national party committee?

Buckley, 424 U.S. at 38 (emphasis added). No. Nor is it

possible to make a “huge” contribution to any political

party committee or PAC (that makes contributions).

While the system that Buckley considered had no base

limits on contributions to political parties and PACs

(other than the “ceiling”), those now exist. See MB-App.

18a. Thus, Buckley’s conduit-contribution mechanism

no longer functions.

Individuals may currently give $32,400/year to a

national party committee, $10,000/year to a state party

committee (combined), $5,000/year to a PAC, and

$2,600/election to a candidate. Id. None of these is

“huge,” per year or biennium.27

Moreover, failure of Congress to properly adjust

limits for inflation means that any quid-pro-quo or con27 Buckley did not consider the $25,000 “ceiling” huge,

because the Court said it prevented “huge” contributions.

That $25,000 (in 1974) is worth $118,039 now. See

www.bls.gov/data/inflation_calculator.htm. Butthe present

aggregate limit on contributions to all non-candidate committees is only $74,600.
35

duit-contribution risk has decreased since the 1974

FECA scheme. Failure to inflation-adjust limits is a

“danger sign” requiring careful scrutiny as to tailoring.

Randall, 548 U.S. at 252-53 (plurality). The inflation

calculator provides current equivalents for the permissible 1974 contribution-limits. The $1,000 limit on a

person’s contributions to candidates upheld in Buckley,

424 U.S. at 23-35, is now worth $4,722, not the current

$2,600. The $5,000 limit on a political committee’s contributions to candidates upheld in Buckley, id. at 35-

37, is now worth $23,608, not the current $5,000. Using 1974 dollar values in a typical election cycle with

primary and general elections, an individual should be

able to contribute $9,444 to a candidate, not $5,200,

and a political party committee or multicandidate PAC

should be able to contribute $47,216 to a candidate, not

$10,000. Though Congress found no corruption or conduit-contribution risk below these inflation-adjusted

amounts, it failed to properly adjust the limits for inflation, thereby layering on yet another prophylaxis

affecting the conduit-contribution analysis. For example, even if a contributor could somehow use a national

party committee as a conduit for a $5,000 contribution

to a candidate, the actual level at which Congress asserted a conduit-corruption risk is now worth $23,608.

And turning specifically to national party committees, we again see that the failure to inflation-adjust

limits has decreased any conduit-contribution risk

since 1976. The 1976 FECA amendments established

a $20,000 base limit for an individual’s contribution to

a national party committee. See supra at 19. In 2002,

BCRA increased this to $25,000. 2 U.S.C. 441a(a)(1)

(B). But inflation-adjusted from 1976 to 2002, that

should have been $63,234. See http://www. bls.gov/data/inflation_calculator.htm. Inflationadjustments since
36

2002 do not fix this problem; properly adjusted since

1976, this base limit should now be $81,818, not

$32,400. Id. Since base limits on contributions to noncandidate committees are based on a conduit-contribution concern, the base limits are far below those at

which Congress asserted its concern in 1976. Any

conduit-contribution risk from base-level contributions

has proportionately diminished.

Congress made the judgment that each base limit

strikes the right balance in eliminating any cognizable

conduit-contribution and corruption risk as to the entity to which the limit applies. See supra at 21, 23

(Conference Committee Report). So a $32,400/year

limit on contributions to RNC, coupled with limits on

contributions and coordinated expenditures by RNC,

eliminates any cognizable conduit-contribution risk as

to a contribution to RNC. Doing something posing zero

cognizable risk multiple times does not increase the

risk. Zero multiplied by anything equals zero. Thus,

there is no conduit-contribution justification for an aggregate limit. Ifthere is no conduit-contribution risk in

giving $32,400/year to RNC, NRSC, or NRCC, there is

no such risk in giving that to all of them in a year, or

to each per year per biennium.

In BCRA, Congress instituted yet another prophylaxis against giving “huge” amounts to political committees in the form of “soft money.” This prophylaxis

was a total ban, upheld in McConnell:

The question for present purposes is whether

large soft-money contributions to national party

committees have a corrupting influence or give

rise to the appearance of corruption. Both common sense and the ample record in these cases

confirm Congress’ belief that they do. . . . FEC’s
37

allocation regime has invited widespread circumvention of FECA’s limits on contributions to

parties for the purpose of influencing federal

elections.

540 U.S. at 145.

28 This was so, the Court said, because

“[i]t is not only plausible, but likely, that candidates

would feel grateful for such donations and that donors

would seek to exploit that gratitude.” Id. The “circumvention” mentioned here had nothing to do with the

conduit-contribution mechanism of Buckley. 424 U.S.

at 38. Rather, the described “circumvention” mechanism was through broadly defined “corruption” (and its

appearance), not conduit-contributions reaching candidates. Citizens United rejected this equation of corruption with influence, access, or gratitude. 130 S. Ct. at

909-10. Nonetheless, Congress’s ban on soft-money

contributions remains in effect, providing another prophylaxis preventing the movement of “huge” amounts

to political party committees.

In sum, Buckley’s conduit-contribution concern was

based on the movement of “massive” conduit-contributions to a particular candidate by means of a “huge”

unearmarked contribution to a political party (or PAC).

424 U.S. at 38. That is now impossible.

(e) Congress Imposed an Anti-Conduit

Prophylaxis by Many Prophylaxes.

Buckley’s conduit-contribution mechanism dealt

with whether political party committees could be con28 Some of the perceived problem with soft money was

Congress’s failure to adjust hard money contribution limits

for inflation. A $20,000 hard money contribution plus a

$40,000 soft money contribution to RNC in 2001, totaling

$60,000, would have been well within a properly inflationadjusted hard money limit. See supra at 35.
38

duits for “massive” contributions to a particular, intended candidate. That is now impossible, which is

clear from the elimination of “huge” contributions to

political party committees and of political-committee

proliferation. See supra Part II(B). It is further clear

that Congress imposed a general conduit-contribution

prophylaxis from the following layers of prophylaxes.

As a result, conduit-contributions are impossible now.

One prophylaxis is a base limit on a contribution to

a candidate. That base limit—aimed at the underlying

quid-pro-quo risk— is “preventative.” Citizens United,

130 S. Ct. at 908. There is no inherent wrong in a large

contribution to a candidate. Rather, the giving of financial quids for political quos is wrong: “The hallmark of

corruption is the financial quid pro quo: dollars for political favors.” NCPAC, 470 U.S. at 497.

That base-limit prophylaxis is layered atop two

other prophylaxes, discussed in Buckley, designed to

eliminate quid-pro-quo corruption, i.e., laws criminalizing bribery and requiring contribution disclosure. See

424 U.S. at 27-28. Buckley decided that the challenged

base limit was justified as an additional prophylaxis

because “laws making [bribes] criminal . . . deal with

only the most blatant and specific attempts of those

with money to influence governmental action.” Id.

And there are other prophylaxes. One prohibits

false-name contributions—making or accepting contributions other than in the name of the true contributor.

2 U.S.C. 441f. See MB-App. 6a. This includes “assist-

[ing]” another in making such a contribution and simply not “disclosing the source of the money.” 11 C.F.R.

110.4(b). See MB-App. 10a. Contributions to a candidate through another entity must be done in one’s own
39

name and subject to one’s own limit or the contribution

is illegal and subject to stiff penalties.

Another prophylaxis involves earmarking laws.

Earmarked contributions through an intermediary are

deemed contributions from the original contributor,

subject to that contributor’s limit and to disclosure. 2

U.S.C. 441a(a)(8). See MB-App. 6a.

All contributions by a person made on behalf of

or to a candidate, including contributions which

are in any way earmarked or otherwise directed

to the candidate through an intermediary or

conduit, are contributions from the person to the

candidate.

11 C.F.R. 110.6(a). See MB-App. 12a. And “earmarked”

sweeps broadly:

[E]armarked means a designation, instruction,

or encumbrance, whether direct or indirect, express or implied, oral or written, which results

in all or any part of a contribution or expenditure being made to, or expended on behalf of, a

clearly identified candidate or a candidate’s authorized committee.

11 C.F.R. 110.6(b)(1). See MB-App. 12a.29

29 FEC further expands the reach of the earmarking rule

as follows:

A contribution received by a party committee may

count against the contributor’s contribution limit for

a particular candidate if:

• The contributor knows that a substantial portion

of his or her contribution will be given to or

spent on behalf of a particular candidate; or

• The contributor retains control over the funds

(continued...)
40

Thus, any conduit-contribution mechanism advanced to justify aggregate limits may not assume

some “agreement” or “understanding” as the mechanism to get a conduit-contribution through a political

committee to a candidate unless all parties involved

scrupulously complied with the “conduit or intermediary” requirements of contribution limits and reporting

at 11 C.F.R. 110.6. Otherwise the attempted conduit

contribution is illegal. Buckley’s mechanism was based

on “unearmarked” contributions, so any attempt to

show a mechanism now must assume non-earmarking

(but full compliance with the law).

From the foregoing, it is clear that unearmarked

contributions do not include wink-and-nod arrangements, and that the “huge” contributions essential to

Buckley’s mechanism are prohibited. But there is also

an analytical problem for any suggested conduit-contribution mechanism based on truly unearmarked contributions: can an unearmarked contribution actually

pose a conduit-contribution risk?

Without earmarking, a national party committee

might decide to contribute the now-permissible $5,000

to a candidate, but it might not. Without earmarking,

29

 (...continued)

after making the contribution (for example, the

contributor earmarks the contribution for a particular candidate). [11 C.F.R.]110.1(h), 110.2(h)

and 110.6.

FEC, Political Party Committees at 15 (2009).“On behalf of”

here means something like paying a candidate’s bills, not

making independent expenditures supporting a candidate,

because unlimited contributions to super-PACs may be earmarked for particular independent expenditures. See FEC,

Advisory Opinion 2010-09 (Club for Growth) at 5.
41

there is no way to assure that any of an individual’s

contribution to a national party committee will ever

make it to a particular candidate as a contribution. A

political party committee is free to do with the money

as it wishes. National party committees have many

demands on their funds. The odds that any funds from

an unearmarked contribution might flow to a particular candidate are so low as to be noncognizable—even

setting aside the fact that unearmarked funds, pooled

with millions of dollars from myriad contributors, become fungible.

FEC has recently confirmed that unearmarked contributions do not bind a national party committee in

any way and that the presence of a tally system neither alters the committee’s spending liberty nor creates

any conduit-contribution concern.30 In 2012,FEC lifted

the requirements of a settlement agreement on DSCC

arising from a complaint that it was accepting contributions that were really earmarked, though it was not

treating them as such.

31 Included in the complaint was

the fact that DSCC had a tally system whereby contributions to DSCC were being tallied for certain candidates, who would then be favored if DSCC decided that

the candidate’s campaign would receive financial support. FEC permitted such a tally system so long as

DSCC included the following notice on its solicitations:

The DSCC does not accept contributions earmarked for a particular candidate. Contributions tallied for a particular candidate will be

30 The lower court cited a tally system as support for its

hypothetical circumvention mechanism. JS-App. 12a.

31 See FEC, MUR 3620 (DSCC), available through http://

fec.gov/em/mur.shtml, and accompanying documents.
42

spent for DSCC activities and programs as the

Committee determines within its solediscretion.

DSCC recently asked to have the notice requirement

lifted, and FEC agreed. For present purposes, this FEC

concession establishes that contributions to a national

party committee are not cognizable as conduit-contributions absent formal earmarking, even where a tally

system lets the candidate know that the individual

made a contribution that the individual wanted credited to that candidate.

Ifthis as-applied challenge succeeds, what could an

individual contribute per biennium under 2 U.S.C.

441a(a)(3)(B)?32 An individual could give $194,400 to

national party committees, plus $48,600 to state party

committees and PACs.33 These are not “huge” contributions, and an individual’s prorated shares of contributions to and by these entities are not cognizable circumvention because Congress approved these limits.

Thus, Buckley’s “massive”-contribution-conduit concern

is eliminated by, inter alia,the $32,400/year base limit

on contributions to national party committees, the

$5,000/election limit on contributions by a national

party committee to a candidate, and the coordinated32 An individual also has a $48,600 aggregate limit for

contributions to candidates. See MB-App. 18a. Congress

bifurcated the limits, so it is not relevant here.

33 The lower court claims that—absent all aggregate

limits—“an individual might contribute $3.5 million to one

party and its affiliated committees in a single election cycle.” JS-App. 3a n.1. But under this as-applied challenge,

and if this Court decides that the $48,600 limit on contributions to non-national party committees is severable, see

Part V, an individual could contribute the stated $194,400

+ $48,600.
43

expenditure Party Expenditure Provision limits. See

MB-App. 17a.34

From this review of Buckley’s conduit-contribution

concerns as applied, it is clear that Congress has created prophylaxes onprophylaxes eliminating Buckley’s

concerns. The 1976 Conference Report specifically said

that Congress was amending FECA to eliminate these

concerns. See supra at 21, 23. Because Buckley’s

conduit-contribution concern is already amply addressed withoutthe aggregate limits, there remains no

justification for the $74,600 aggregate limit on contributions as applied to national party committees. Congress is layering prophylaxes in a manner broader

than necessary.

In sum, the $74,600 aggregate limit is supported by

neither a justifying interest nor proper tailoring, under

strict or exacting scrutiny, as applied to national partycommittees.35

34

 The Party Expenditure Provision limits were upheld

in Colorado-II, because political parties “act as agents for

spending on behalf of those who seek to produce obligated

officeholders.” 533 U.S. at 452. This reiterated Buckley’s

concern about political parties serving as conduits for circumventing contribution limits. (The dissent disputed that

the evidence showed any corruption or circumvention concern. Id. at 475-80.) But, the Court added, “[i]t is this party

role . . . that the Party Expenditure Provision targets.” Id.

at 452 (emphasis added). This targeting by Congress was its

circumvention cure. It was the level at which Congress perceived a potential problem and asserted an interest.

35 Congress’s assertion of an anti-circumvention interest

is also underinclusive because PACs’ contributions candidates are not subject to an aggregate limit. Multicandidate

(continued...)
44

3. The Aggregate Limit Relies on an Unconstitutional Equalizing Interest.

Because the aggregate limit is not justified by a

conduit-contribution concern, it serves only to limit

persons who could contribute $194,400 to three national party committees to giving just $74,600. FEC

asserts an equalizing interest by declaring that “the

aggregate limits serve to ‘curtail the influence of excessive political contributions by any single person.’” Mot.

Dismiss or Affirm at 2 (quoting 120 Cong. Rec. 27,224

(1974) (Statement of Rep. Brademas)). This is unsurprising because in Buckley the government also asserted an interest in “mut[ing] the voices of affluent

persons . . . and thereby . . . equaliz[ing] the . . . ability

. . . to affect . . . elections.” 424 U.S. at 25-26. But

Buckley rejected an equalizing interest, id. at 48-49,

54, 57, as did Citizens United, 130 S. Ct. at 904, 910.

FEC cannot meet its burden with forbidden interests.

4. The Lower Court’s Posited Conduit-Contribution Mechanism Fails Scrutiny.

Given the foregoing, the lower court’s proposed

conduit-contribution mechanism, JS-App. 12a, fails

scrutiny.

Buckley requires a specific, cognizable mechanism

by which an individual’s unearmarked contribution

results in a cognizable conduit-contribution to a particular, intended (but unspecified) candidate, through a

35

 (...continued)

PACs, as deeply interested in legislative outcomes as individuals, may contribute $5,000 to as many candidates as

they can afford. Cf. Republican Party of Minnesota v. White,

536 U.S. 765, 780 (2002) (“As a means of pursuing the [articulated] objective . . . , the [provision] is so . . .

underinclusive” it is not credible.).
45

national party committee (absent the aggregate limit).

424 U.S. at 38 (positing conduit-contribution mechanism). And the mechanism must be based on the function of the aggregate limit itself, just as in Buckley the

mechanism was based on base-limit gaps that the “ceiling” closed.

Moreover,the lower court’shypothetical mechanism

must comport with the governing principles:

• the government’s duty to prove interests with evidence, not speculation, see supra at 29;

• the assumption that individuals, political party

committees, and candidates obey the law;

• the ban on giving, receiving, or assisting contributions in the name of another, see supra at 38;

• the broad definition of “earmarking” (catching implicit understandings) and the ban on earmarking

absent compliance with contribution limits and reporting requirements, see supra at 38-39;

• elimination of political-committee proliferation by

the same persons and Congress’s authorization of

three national party committees per political party,

see supra at 32-34

• the base limit eliminating the possibility of a

“huge” contribution by an individual to a national

party committee—set at the level at which Congress perceived, and asserted, a conduit-contribution concern, see supra at 21, 23 (Conference Committee Report);

• congressionally established limits on national party

committee contributions to, and coordinated expenditures with, candidates—which “target” circumvention at the level at which Congress perceived,

and asserted, a conduit-contribution concern, see
46

See Colorado-II, 533 U.S. at 452 (Party Expenditure Provision limit “targets” circumvention interest);

• Congress’s express exemption of political party

transfers and candidate-to-political party transfers

from the contribution limits, thereby asserting no

conduit-contribution concern, see supra at 20; and

• the fact that, absent earmarking, there is no reliable way for a contributor to assure that a national

party committee will contribute to, or coordinate

expenditures with, any particular candidate or at

any particular level, see supra at 40-42.

The hypothetical mechanism underlying the lower

court’s decision has four elements:

(1) “an individual . . . give[s] half-a-million dollars in a

single check to a joint fundraising committee comprising a party’s presidential candidate, . . . national party committee, and most of the party’s

state party committees”;

(2) these committees might“transfer”funds, so “the . . .

contribution might . . . find its way to a single committee[],” which “might use the money for coordinated expenditures”;

(3) the benefitted “candidate . . . knows the coordinated

expenditure derives from that . . . check . . . [and]

will know precisely where to lay the wreath of gratitude,” though “[g]ratitude . . . is not . . . a

constitutionally-cognizable form of corruption”; and

(4) though “it may seem unlikely that so many entities

wouldwillingly serve as conduits for a single contributor’s interests[,] . . . it is not hard to imagine a situation where the parties implicitly agree to such a

system.” JS-App. 12a (emphasis added).
47

Considering these four elements in light of the foregoing principles, reveals that the lower court’s mechanism fails.

(1) In the first element, the half-million-dollar figure is erroneous for this as-applied challenge. If the

$74,600 aggregate limit is struck as applied to national

party committees, an individual could contribute

$194,400/biennium (for three national party committees) plus $48,600 (for state party committees). See

supra at 42. An individual may give a candidate only

$2,600/election, potentially $5,200/biennium (with primary and general elections).36 Only if the challenges in

Parts III (facial) and IV (severability) succeed, could

more be contributed to state party committees biennially. Furthermore,there is no evidence that state party

committees have been willing to join a presidential

committee in a joint fundraising effort and then transfer all theirs receipts to a national party committee.

Moreover, joint-fundraising contributions are hard

money, for which Congress has already satisfied its

conduit-contribution concern. FEC’s joint-fundraising

regulation requires compliance with all applicable

source-and-amount restrictions (and imposes considerable administrative burdens). See 11 C.F.R. 102.17. So

a single check is immaterial, as is an allegedly large

check—these arguments are based on a forbidden

equalizing interest. And if Congress perceivesproblems

with joint fundraisers, that is a separate issue that

Congress can fix—without burdening individuals’ First

Amendment rights with aggregate limits.

36 Contributions to candidates are presumed for the next

election, unless otherwise designated in writing; contributions designated for past-elections can only retire debts. 11

C.F.R. 110.1(b).
48

(2) In the second element, the lower court’s repetition of “might” is impermissible speculation. Where

First Amendment rights are involved, the government

“must do more than simply posit the existence of the

disease sought to be cured. It must demonstrate that

the recited harms are real, not merely conjectural . . . .”

Turner Broadcasting Sys., 512 U.S. at 664 (internal

citation omitted). This speculation is not even credible

because it purportedly occurs despite: no earmarking

(broadly defined); the ban on name-of-another contributions; and the fact that candidate committees and

party committees have their own diverse and pressing

needs for which they fundraise.

Congress perceived no problem with, and asserted

no interest in restricting, transfers, so transfers may

not now be asserted as justifying aggregate limits.

When Congress asserted its conduit-contribution concern post-Buckley with new limits on contributions to

and by committees—and on political committee proliferation—it expressly excluded hard-money “transfers.”

See supra at 20. And if transfers were a cognizable

problem, that is a separate issue that Congress could

address, not a reason to uphold aggregate limits. The

limit on national party committee’s coordinated expenditures already “targets” the conduit-contribution concern. Colorado-II, 533 U.S. at 452. That limit—with

the limit on contributions to and by party committees—are Congress’s cure for conduit-contributions. In

analyzing a circumvention risk in Colorado-II, this

Court made no mention of transfers, indicating that

with the aforementioned limits in place, national party
49

committees were free to transfer funds without concern.

37, 38

(3) In the third element, the lower court asserts

that the benefitted “candidate . . . knows the coordinated expenditure derives from that . . . check . . . [and]

will know precisely where to lay the wreath of gratitude,” though “[g]ratitude . . . is not . . . a constitutionally-cognizable form of corruption.”

As discussed regarding the DSCC tally system, supra at 41-42, mere knowledge of anindividual contributor’s preference is non-cognizable as a conduit-contribution concern absent earmarking. Andthe lower court

may not assume sub-silentio earmarking unless it is

willing to assume that an individual, state party com37 Even the Democratic Party’s tallying system,

Colorado-II, 533 U.S. at 459-60, which was “legal,” id. at

459 n.22, could function without posing a circumvention

risk with the party coordinated expenditure limit in place.

So the lower court’s citation of the tally system, JS-App.

12a, was erroneous, especially since there is no evidence of

such a system here.

Moreover, a tally-system argument is no longer viable

after FEC’s 2012 decision that the DSCC fulfilled conciliation-agreement obligations regarding its ongoing tallying

system. See supra at 41-42. Tallying creates no cognizable

conduit-contribution risk.

38 At a minimum, FEC must prove that the increment

between the $74,600 aggregate limit and the $194,400 that

the base limit allows (to three national party committees

per biennium), creates a conduit-contribution mechanism.

FEC must do so based either on the premise that singlechecks,transfers, and gratitude are not part of any cognizable mechanism, see supra, or on the proof that these somehow apply to the increment even though they do not apply

to contributions under the $74,600 aggregate limit.
50

mittees, a national party committee, and a candidate

are willing to violate a law with serious legal and reputation penalties—anerroneous assumption, both factually and legally. See infra at 50. Notably, the court

does not assertthat a conduit-contribution occurs in its

mechanism—a fatal problem—citing, rather,forbidden

gratitude “corruption.” And, while acknowledging that

it may not rely on gratitude, it does. See JS-App. 12a

(“wreath of gratitude”).

(4)With the fourth element, the court acknowledges

the “unlikel[ihood] that so many entities would willingly serve as conduits for a single contributor’s interests.” But if they are “conduits” then the court is now

implying an actual conduit-contribution, despite its

prior reliance on “gratitude.” If a conduit-contribution

is alleged, then the question is whether political parties, a candidate, and an individual are “likely” to engage in illegal activity with serious reputation and legal penalties, i.e., whether they are willing to violate

the bans on making, assisting, and receiving name-ofanother contributions and on making earmarked contributions without proper reporting and compliance

with contribution limits.

The court’s solution to this unlikely scenario is that

“it is not hard to imagine a situation where the parties

implicitly agree to such a system.” Such speculation

has no place in First Amendment jurisprudence.

It is hard to imagine so many so willing to violate

the law and risk serious consequences—which could

doom their ability to pursue their political goals at

all.39 Implicit agreement is agreement. Implicit ear39 Violators risk civil (greater of $10,000 or 200% of un-

(continued...)
51

marking is earmarking. Implicit contributions are contributions. Implicitly violating contribution limits and

conduit-reporting laws is violating the law.

The court’s mechanism assumes that multiple entities will violate existing laws designed to prevent the

conduit-contribution it posits. Justifying one conduitcontribution law on the basis that persons will violate

other conduit-contribution laws is erroneous. Otherwise, Congress could create endless prophylaxes on

prophylaxes, with each new one purportedly justified

by the same interest and assuming violation of all preceding laws. Proper analysis is premised on obedience,

not disobedience. If people violate existing laws, the

solution is enforcement, not creating new laws for presumed violators to also violate.

The court ignored the many prophylaxes in place—

and their individual and cumulative effects—by

“conceiv[ing] of the contribution limits as a coherent

system rather than merely a collection of individual

limits stacking prophylaxis upon prophylaxis.” JS-App.

13a. That is neither precise First Amendment analysis

nor the way of Buckley, which considered each limit

individually. 424 U.S. at 23-51. Nor was it the way of

Citizens United, which systematically and carefully

considered each proffered interest before striking down

the corporate independent-expenditure ban. 130 S. Ct.

at 909-11.40

39

 (...continued)

lawful contribution) and criminal penalties (up to $500,000

and 5 years in prison). 2 U.S.C. 437g.

40 The amici curiae brief by NRSC and NRCC further

demonstrates that joint fundraising committees are not a

means of circumventing contribution limits.
52

In sum, the lower court’s hypothetical mechanism

fails.

III.

The $74,600 Aggregate Limit on

Contributions to Non-Candidate Committees

Is Facially Unconstitutional.

The $74,600 aggregate limit, 2 U.S.C. 441a(a)(3)

(B), restricts contributions to all non-candidate committees. Ifthe $74,600 limit is held unconstitutional as

applied to the substantial contributions received by

national party committees, seehttp://www.opensecrets.

org/parties/, it is substantially overbroad and facially

unconstitutional. See Broadrick v. Oklahoma, 413 U.S.

601, 613 (1973). So if the $48,600 sub-limit is struck,

see Part IV, state, district, and localparty committees,

as well as PACs, would not be bound by the $74,600

limit.

IV.

The $48,600 Aggregate Limit on Contributions

to State Party Committees and PACs Is NonSeverable and So Should Be Struck.

Congress drafted 2 U.S.C. 441a(a)(3)(B) in an unusual way. It logically and grammatically intertwined

the $74,600 aggregate limit with the $48,600 sub-limit

on non-national party committees. See MB-App. 4a. By

contrast, in 441a(a)(1), Congress listed base limits in

easily severable sub-sections. See MB-App. 3a. But in

441a(a)(3)(B), Congress intertwined the $74,600 limit

with the $48,600 sub-limit, so striking the former

leaves meaningless language:
53

[N]o individual may make contributions aggregating more than—

. . .

(B) [$74,600], in the case of any other contributions, of which not more than [$48,600] may

be attributable to contributions to political committees which are not political committees of

national political parties.

Fixing this would require the Court to rewrite the

provision. “[I]t is for Congress, not this Court, to rewrite the statute.” Blount v. Rizzi, 400 U.S. 410, 419

(1971). Congress “would have intended [this Court] to

set aside the . . . limits, leaving [it] free to rewrite.”

Randall, 548 U.S. at 262 (plurality).

Because the $48,600 sub-limit on contributions to

non-national party committees is an integral part of

441a(a)(3)(B), Congress thereby indicated its intention

that the provision operate as a unit. So the sub-limit is

non-severable and must fall with the whole provision.

V.

The $48,600 Aggregate Limit on Contributions

to Candidates Is Unconstitutional.

The $48,600 aggregate limit on contributions to

candidate committees, 2 U.S.C. 441a(a)(3)(A) (MB-App.

4a), also violates First Amendment rights. It bars contributors from expressing support for, and associating

with, allthe candidates they choose with full-base-level

contributions.41 The lower court erroneously did not

separately address this limit, though this limit is even

less defensible than the $74,600 aggregate limit.

41 Even candidates who do not represent a contributor’s

home-district or state have a direct effect on the contributor, so contributors have an interest in races elsewhere.
54

A. The Applicable Concern Is Preventing Conduit-Contributions.

The Buckley Court did not suggest a mechanism for

how an unearmarked conduit-contribution might pass

from an individual, through a candidate committee, to

another intended, particular candidate. See 424 U.S. at

38. Because Buckley’s analysis should guide this analysis, there must be a cognizable conduit-contribution

mechanism. Id. See supra at 15-18.

As noted above, base limits on contributions to candidates must be justified by an anti-corruption interest, Buckley, 424 U.S. at 26-28, while aggregate limits

may be justified by the derivative conduit-contribution

concern, id. at 38. See Part II(D)(1)-(2). To the limited

extent that candidate committees may contribute to

other candidates, the base limit on contributions to

candidates might also be justified by a conduit-contribution concern. Congress only perceived, and asserted,

its anti-corruption interest and conduit-contribution

concern as far as its limits on contributions to and by

candidate committees.42

To uphold the aggregate limits on contributions to

candidates, a cognizable conduit-contribution mechanism must be proven, i.e., a means by which an individual’s unearmarked contribution to a candidate committee yields a “massive” contribution to another, intended

“particular candidate.” See Buckley, 424 U.S. at 38.

42 The ability of candidate committees to transfer funds

to party committees does not implicate the conduit-contribution concern because Congress expressly permits such

transfers (without limitation), thereby asserting no interest

in regulating them. 2 U.S.C. 439a(a)(4); 11 C.F.R. 113.2(c).

This makes transfers inapplicable to a proposed conduitcontribution mechanism.
55

The mechanism must be based on the function of the

aggregate limit itself, as was Buckley’s mechanism. Id.

B. The Government Cannot Justify the Aggregate Limit Under Either Exacting or Strict

Scrutiny.

Strict scrutiny should apply, see Part I, though exacting scrutiny suffices for McCutcheon to prevail because the aggregate limit is not supported by either the

anti-corruption interest or a derivative conduit-contribution concern, required by Buckley. See 424 U.S. at

38.

Buckley did not even suggestthat the “ceiling” on all

of an individual’s political contributions might be justified by circumvention of the $1,000/election base limit

on contributions to candidates through the use of candidate committees for conduit-contributions. Id. at 23,

38. Under the Buckley-era FECA scheme, no “huge”

contribution could be given to a candidate committee,

so no “massive” conduit-contribution could be channeled through one. Id. And there was no candidatecommittee proliferation because each candidate had

one principal-campaign committee, id. at 187, and contributions to any authorized candidate committee were

deemed made to the candidate, id. at 189-90. So

Buckley’s conduit-contribution mechanism did not, and

does not, apply to candidate committees.

These limits remain low: a $2,600/election base

limit and a $2,000/election candidate-to-candidate-limit. See MB-App. 17a.

43 Congress had no need to fix

43 The $2,000 candidate-to-candidate contribution-limit

raisesno cognizable conduit-contribution concern. If used to

support a Senate (statewide) candidate, $2,000 is only five

(continued...)
56

conduit-contribution problems regarding candidatecommittees in the 1976, post-Buckley FECA amendments because there were none.

The lower court proposed no conduit-contribution

mechanism specific to candidate committees, though

the joint-fundraising mechanism it offered would fail

as applied solely to candidate committees, based on the

principles and reasons stated in Part II. Generally, no

“huge” contributions can be made to a candidate committee, no “massive” contribution can be made by a

candidate committee. Name-of-another and earmarking laws prohibit any implicit earmarking, and earmarked contributions are subject to both contribution

limits andreporting requirements—and assuming that

individuals and candidate committees will violate the

law in order to layer on another prophylaxis is a flawed

analysis because otherwise endless prophylaxes could

be created based on the same interest but assuming all

prior laws would be violated. See supra at 38-39, 50-51.

Neither transfers nor any tally system (none is in evidence here) may be considered as part of conduit-contribution mechanism because Congress asserted no

interest in restricting transfers, see supra at 20, 54

n.42, and FEC expressly recognizes that a tally system

is permissible so long as all contribution limits, ear43

 (...continued)

times greater than the $400 limit struck down in Randall

as too low to further a statewide campaign in tiny Vermont.

Randall, 548 U.S. at 253, 261-62. Moreover, this noninflation-adjusted, $2,000 limit is lower than the $2,600

base limit on an individual’s contribution to a candidate—the level at which Congress perceived, and asserted,

its anti-corruption interest regarding a contribution to a

candidate.
57

marking requirements, and reporting laws are followed, see supra at 41-42, 48 n.38. So there is no means

by which conduit-contributions can be made, and thus

no justification based on a conduit-contributionconcern

for an aggregate limit on individuals’ contributions to

candidate committees.

Though Buckley’s analysis requires the government

to prove a “massive”-conduit-contribution mechanism,

424 U.S. at 38, examining this aggregate limit under

a simple quid-pro-quo corruption analysis is also instructive.

A quid-pro-quo corruption interest may justify the

base limit on a contribution to a candidate. Id. at 26.

But it does not justify the aggregate limit because a

contribution at the full-base-level limit (currently

$2,600/election)to all of candidates A-Y cannot corrupt

candidate Z. There is no monetary quid for an official

quo (absent all manner of illegal activity). Buckley’s

description of quid-pro-quo corruption involved a large

sum to a particular candidate who then gives a quid for

that quo, id. at 26, which is absent with respect to Z.

At best Z could be grateful for contributions to other

candidates, but gratitude is a forbidden theory of corruption. Citizens United, 130 S. Ct. at 909-10. Thus,

the aggregate limit is overbroad as to the anti-corruption interest. Itis merely a prophylaxis-on-prophylaxis

layer atop the limits on contributions to and by candidate committees that already eliminate a quid-pro-quo

risk. It is irrelevant to the conduit-contribution concern, which is derivative of the anti-corruption interest. Thus, it is not properly tailored (closely or narrowly) to the anti-corruption interest.

As a result it becomes clear that this aggregate

limit serves only the forbidden equalizing interest.
58

Consider that, in 2006, this Court held that a $200 per

election limit on contributions to Vermont statewide

candidates was unconstitutionally low. Randall, 548

U.S. at 249, 262-63. Vermont’s 2004 population was

621,000, id. at 250, well below the 646,947 population

of the average congressional district.44 In 2006, the

aggregate-limit was $40,000. If an individual wanted

to make an equal contribution to a candidate in all federal races (435 House, 33 Senate), she would have been

limited by the aggregate limit to $43/election per candidate (assuming primary and general elections). That

is far below the $1,000/election per candidate baselimit at which Congress perceived, and asserted, any

anti-corruption interest or conduit-contribution concern.

Finally, if candidate committees posed no cognizable conduit-contribution risk in Buckley, they pose even

less risk now because, in BCRA, Congress restricted

what contributors could do in three ways:

• It failed to properly inflation-adjust the 1974

FECA-scheme that Buckley considered. The old

$1,000 base limit on a person’s contribution to a

candidate is now worth $4,722, not the current

$2,600; the $1,000 that one candidate could give

another is also now worth $4,722, not the current

$2,000; and if an individual wanted to give his

whole “$25,000 ceiling” to candidates, that ceiling

is now worth $118,039, not the current $48,600. See

http://www.bls.gov/data/inflation_calculator. htm.

• BCRA decreased the number of candidates an individual may express support for, and associate with,

at the full-base-level limit in single elections, from

44 Dividing the 2000 U.S. population, 281,421,90, by 435.
59

twenty-five to eighteen ($25,000/$1,000 versus

$48,600/$2,600), or only nine if the same candidates

are supported in both primary and general elections.

• Congress gave contributions to candidates their

own aggregate limit, 2 U.S.C. 441a(a)(3)(A), rather

than including them with other contributions as

under the old “ceiling.” Congress thus asserted that

giving solely to candidates poses a conduit-contribution risk. So the constitutionality of this aggregate

limit must be justified alone, making the lower

court’s analysis of the aggregate “limits as a coherent system,” JS-App. 13a, erroneous.

In sum, because 2 U.S.C. 441a(a)(3)(A) is unsupported by a conduit-contribution concern and is

overbroad with regard to the anti-corruption interest,

this aggregate limit is unconstitutional.
60

Conclusion

The limit at 2 U.S.C. 441a(a)(3)(B) should be held

unconstitutional, as applied to national party committees and facially, and its sub-limit should be struck as

non-severable. The limit at 2 U.S.C. 441a(a)(3)(A)

should be held unconstitutional.

Stephen M. Hoersting

700 E. Schantz Ave.

Dayton, OH 45419

Hoersting@gmail.com

937/623-6102

Of Counsel

May 6, 2013

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Anita Y. Woudenberg

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for Republican

National Committee
Appendix
Merits Brief Appendix (“MB-App.”)

Table of Contents

U.S. Constitution, Amendment I. . . . . . . . . . . . . . . 1a

18 U.S.C. 608(b) (1974). . . . . . . . . . . . . . . . . . . . . . . 1a

2 U.S.C. 441a(a)(1)-(5), (8) (“Limitations, contributions, and expenditures”).. . . . . . . . . . . . . . . . 3a

2 U.S.C. 441f (“Contributions in name of another

prohibited”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

11 C.F.R. 100.5(g) (“Political committee”). . . . . . . . 7a

11 C.F.R. 110.4(b) (“Contributions in the name of

another”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10a

11 C.F.R. 110.5(a)-(b) (“Aggregate biennial contribution limitation for individuals”). . . . . . . . . . 11a

11 C.F.R. 110.6 (“Earmarked contributions”). . . . 12a

FEC, Contribution Limits for 2013-2014. . . . . . . . 17a

Buckley-Scheme and BCRA-Scheme Charts. . . . . 18a
1a

U.S. Constitution, Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

____________

18 U.S.C. 608(b) (1974)

(See Buckley v. Valeo, 424 U.S. 1, 189 (1976).)

(b) Contributions by persons and committees.

(1) Except as otherwise provided by paragraphs (2)

and (3), no person shall make contributions to any candidate with respect to any election for Federal office

which, in the aggregate, exceed $1,000. 

(2) No political committee (other than a principal

campaign committee) shall make contributions to any

candidate with respectto any election for Federal office

which, in the aggregate, exceed $5,000. Contributions

by the national committee of a political party serving

as the principal campaign committee of a candidate for

the office of President of the United States shall not

exceed the limitation imposed by the preceding sentence with respect to any other candidate for Federal

office. For purposes of this paragraph, the term “political committee” means an organization registered as a

political committee under section 433, Title 2, United

States Code, for a period of not less than 6 months

which has received contributions from more than 50

persons and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office. 
2a

(3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For

purposes of this paragraph, any contribution made in

a year other than the calendar year in which the election is held with respect to which such contribution

was made, is considered to be made during the calendar year in which such election is held. 

(4) For purposes of this subsection 

(A) contributions to a named candidate made to

any political committee authorized by such candidate, in writing, to accept contributions on his behalf shall be considered to be contributions made to

such candidate; and 

(B) contributions made to or for the benefit of

any candidate nominated by a political party for

election to the office of Vice President of the United

States shall be considered to be contributions made

to or for the benefit of the candidate of such party

for election to the office of President of the United

States. 

(5) The limitations imposed by paragraphs (1) and

(2) of this subsection shall apply separately with respect to each election, except that all elections held in

any calendar year for the office of President of the

United States (except a general election for such office)

shall be considered to be one election. 

(6) For purposes of the limitations imposed by this

section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate,

including contributions which are in any way earmarked or otherwise directed through an intermediary

or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and
3a

the intended recipient of such contribution to the Commission and to the intended recipient.

____________

2 U.S.C. 441a(a)(1)-(5), (8)

Limitations, contributions, and expenditures

[2013-14 limits in brackets]

(a) Dollar limits on contributions.

(1) Except as provided in subsection (i) of this section and section 441a-1 of this title, no person shall

make contributions—

(A)to any candidate and his authorized political

committees with respect to any election for Federal

office which, in the aggregate, exceed $2,000

[$2,600];

(B) to the political committees established and

maintained by a national political party, which are

not the authorized political committees of any candidate, in any calendar year which, in the aggregate, exceed $25,000 [$32,400]; 

(C) to any other political committee (other than

a committee described in subparagraph (D)) in any

calendar year which, in the aggregate, exceed

$5,000 [$5,000]; or

(D) to a political committee established and

maintained by a State committee of a political

party in any calendar year which, in the aggregate,

exceed $10,000 [$10,000].

(2) No multicandidate political committee shall

make contributions—

(A)to any candidate and his authorized political

committees with respect to any election for Federal

office which, in the aggregate, exceed $5,000

[$5,000];
4a

(B) to the political committees established and

maintained by a national political party, which are

not the authorized political committees of any candidate, in any calendar year, which, in the aggregate, exceed $15,000 [$15,000]; or

(C)to any other political committee in any calendar year which, in the aggregate, exceed $5,000

[$5,000].

(3) During the period which begins on January 1 of

an odd-numbered year and ends on December 31 of the

next even-numbered year, no individual may make

contributions aggregating more than—

(A) $37,500 [$48,600], in the case of contributions to candidates and the authorized committees

of candidates; 

(B) $57,500 [$74,600], in the case of any other

contributions, of which not more than $37,500

[$48,600] may be attributable to contributions to

political committees which are not political committees of national political parties. 

(4) The limitations on contributions contained in

paragraphs (1) and (2) do not apply to transfers between and among political committees which are national, State, district, or local committees (including

any subordinate committee thereof) of the same political party. For purposes of paragraph (2), the term

“multicandidate political committee” means a political

committee which has been registered under section433

of this title for a period of not less than 6 months,

which has received contributions from more than 50

persons, and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office. 

(5)For purposes ofthe limitations provided by paragraph (1) and paragraph (2), all contributions made by
5a

political committees established or financed or maintained or controlled by any corporation, labor organization, or any other person, including any parent, subsidiary, branch, division, department, or local unit of such

corporation, labor organization, or any other person, or

by any group of such persons, shall be considered to

have been made by a single political committee, except

that

(A) nothing in this sentence shall limit transfers

between political committees of funds raised

through joint fund raising efforts;

(B) for purposes of the limitations provided by

paragraph (1) and paragraph (2) all contributions

made by a single political committee established or

financed or maintained or controlled by a national

committee of a political party and by a single political committee established or financed or maintained or controlled by the State committee of a political party shall not be considered to have been

made by a single political committee; and

(C) nothing in this section shall limit the transfer of funds between the principal campaign committee of a candidate seeking nomination or election to a Federal office and the principal campaign

committee of that candidate for nomination or election to another Federal office if

(i) such transfer is not made when the candidate is actively seeking nomination or election

to both such offices;

(ii) the limitations contained in this Act on

contributions by persons are not exceeded by

such transfer; and

(iii) the candidate has not elected to receive

any funds under chapter 95 or chapter 96 of Title 26.
6a

In any case in which a corporation and any of its subsidiaries, branches, divisions, departments, or local

units, or a labor organization and any of its subsidiaries, branches, divisions, departments, or local units

establish or finance or maintain or control more than

one separate segregated fund, all such separate segregated funds shall be treated as a single separate segregated fund for purposes of the limitations provided by

paragraph (1) and paragraph (2).

* * *

(8) For purposes of the limitations imposed by this

section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate,

including contributions which are in any way earmarked or otherwise directed through an intermediary

or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and

the intended recipient of such contribution to the Commission and to the intended recipient.

____________

2 U.S.C. 441f

Contributions in name of another prohibited

No person shall make a contribution in the name of

another person or knowingly permit his name to be

used to effect such a contribution, and no person shall

knowingly accept a contribution made by one person in

the name of another person.
7a

11 C.F.R. 100.5(g)

Political committee

(2 U.S.C. 431 (4) (5) (6))

(g) Affiliated committee. (1) All authorized committees of the same candidate for the same election to Federal office are affiliated.

(2) All committees (including a separate segregated

fund, see 11 CFR part 114) established, financed,

maintained or controlled by the same corporation, labor organization, person, or group of persons, including

any parent, subsidiary, branch, division, department,

or local unit thereof, are affiliated. Local unit may include, in appropriate cases, a franchisee, licensee, or

State or regional association.

(3) Affiliated committees sharing a single contribution limitation under paragraph (g)(2) of this section

include all of the committees established, financed,

maintained or controlled by—

(i) A single corporation and/or its subsidiaries;

(ii) A single national or international union and/or

its local unions or other subordinate organizations;

(iii) An organization of national or international

unions and/or all its State and local central bodies;

(iv) A membership organization, (other than political party committees, see 11 CFR 110.3(b)) including

trade or professional associations, see 11 CFR 114.8(a),

and/or related State and local entities of that organization or group; or

(v) The same person or group of persons.

(4)(i) The Commission may examine the relationship between organizations that sponsor committees,

between the committees themselves, or between one

sponsoring organization and a committee established
8a

by another organization to determine whether committees are affiliated.

(ii) In determining whether committees not described in paragraphs (g)(3) (i)-(iv) of this section are

affiliated, the Commission will consider the circumstantial factors described in paragraphs (g)(4)(ii) (A)

through (J) of this section. The Commission will examine these factors in the context of the overall relationship between committees or sponsoring organizations

to determine whether the presence of any factor or factors is evidence of one committee or organization having been established, financed, maintained or controlled by another committee or sponsoring organization. Such factors include, but are not limited to:

(A) Whether a sponsoring organization owns controlling interest in the voting stock or securities of the

sponsoring organization of another committee;

(B) Whether a sponsoring organization or committee has the authority or ability to direct or participate

in the governance of another sponsoring organization

or committee through provisions of constitutions, bylaws, contracts, or other rules, or through formal or

informal practices or procedures;

(C) Whether a sponsoring organization or committee has the authority or ability to hire, appoint, demote

or otherwise control the officers, or other decisionmaking employees or members of another sponsoring

organization or committee;

(D) Whether a sponsoring organization or committee has a common or overlapping membership with

another sponsoring organization or committee which

indicates a formal or ongoing relationship between the

sponsoring organizations or committees;

(E) Whether a sponsoring organization or committee has common or overlapping officers or employees
9a

with another sponsoring organization or committee

which indicates a formal or ongoing relationship between the sponsoring organizations or committees;

(F)Whether a sponsoring organization or committee

has any members, officers or employees who were

members, officers or employees of another sponsoring

organization or committee which indicates a formal or

ongoing relationship between the sponsoring organizations or committees, or which indicates the creation of

a successor entity;

(G) Whether a sponsoring organization or committee provides funds or goods in a significant amount or

on an ongoing basis to another sponsoring organization

or committee, such as through direct or indirect payments for administrative, fundraising, or other costs,

but not including the transfer to a committee of its allocated share of proceeds jointly raised pursuant to 11

CFR 102.17;

(H) Whether a sponsoring organization or committee causes or arranges for funds in a significant

amount or on an ongoing basis to be provided to another sponsoring organization or committee, but not

including the transfer to a committee of its allocated

share of proceeds jointly raised pursuant to 11 CFR

102.17;

(I)Whether a sponsoring organization or committee

or its agent had an active or significant role in the formation of another sponsoring organization or committee; and

(J) Whether the sponsoring organizations or committees have similar patterns of contributions or contributors which indicates a formal or ongoing relationship between the sponsoring organizations or committees.
10a

(5) Notwithstanding paragraphs (g)(2) through

(g)(4) of this section, no authorized committee shall be

deemed affiliated with any entity that is not an authorized committee.

____________

11 C.F.R. 110.4(b)

Contributions in the name of another;

cash contributions

(2 U.S.C. 441f, 441g, 432(c)(2))

(b) Contributions in the name of another. (1) No person shall—

(i) Make a contribution in the name of another;

(ii) Knowingly permit his or her name to be used to

effect that contribution;

(iii) Knowingly help or assist any person in making

a contribution in the name of another; or

(iv) Knowingly accept a contribution made by one

person in the name of another.

(2) Examples of contributions in the name of another

include—

(i) Giving money or anything of value, all or part of

which was provided to the contributor by another person (the true contributor) without disclosing the source

of money or the thing of value to the recipient candidate or committee at the time the contribution is made,

see 11 CFR 110.6; or

(ii) Making a contribution of money or anything of

value and attributing as the source of the money or

thing of value another person when in fact the contributor is the source.
11a

11 C.F.R. 110.5(a)-(b)

Aggregate biennial contribution limitation

for individuals

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

[2013-14 limits in brackets]

(a) Scope. This section applies to all contributions

made by any individual, except individuals prohibited

from making contributions under 11 CFR 110.20 and

11 CFR part 115.

(b) Biennial limitations. (1) In the two-year period

beginning on January 1 of an odd-numbered year and

ending on December 31 of the next even-numbered

year, no individual shall make contributions aggregating more than $95,000 [$123,200], including no more

than:

(i) $37,500 [$48,600] in the case of contributions to

candidates and the authorized committees of candidates; and

(ii) $57,500 [$74,600] in the case of any other contributions, of which not more than $37,500 [$48,600] may

be attributable to contributions to political committees

that are not political committees of any national political parties.

(2) [Reserved by 73 FR 79602]

(3) The contribution limitations in paragraph (b)(1)

of this section shall be increased by the percent difference in the price index in accordance with 11 CFR

110.17. The increased contribution limitations shall be

in effectfor the two calendar years starting on January

1 of the year in which the contribution limitations are

increased.

(4) In every odd-numbered year, the Commission

will publish in the Federal Register the amount of the
12a

contribution limitations in effect and place such information on the Commission’s Web site.

____________

11 C.F.R. 110.6

Earmarked contributions

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

(a) General. All contributions by a person made on

behalf of or to a candidate, including contributions

which are in any way earmarked or otherwise directed

to the candidate through an intermediary or conduit,

are contributions from the person to the candidate.

(b) Definitions. (1) For purposes of this section, earmarked means a designation, instruction, or encumbrance, whether direct or indirect, express or implied,

oral or written, which results in all or any part of a

contributionor expenditure being made to, or expended

on behalf of, a clearly identified candidate or a candidate’s authorized committee.

(2) For purposes of this section, conduit or intermediary means any person who receives and forwards an

earmarked contribution to a candidate or a candidate’s

authorized committee, except as provided in paragraph

(b)(2)(i) of this section.

(i) For purposes of this section, the following persons shall not be considered to be conduits or intermediaries:

(A) An individual who is an employee or a full-time

volunteer working for the candidate’s authorized committee, provided that the individual is not acting in his

or her capacity as a representative of an entity prohibited from making contributions;
13a

(B) A fundraising representative conducting joint

fundraising with the candidate’s authorized committee

pursuant to 11 CFR 102.17 or 9034.8;

(C) An affiliated committee, as defined in 11 CFR

100.5(g);

(D) A commercial fundraising firm retained by the

candidate or the candidate’s authorized committee to

assist in fundraising; and

(E) An individual who is expressly authorized by

the candidate or the candidate’s authorized committee

to engage in fundraising, and who occupies a significant position within the candidate’s campaign organization, provided that the individual is not acting in his

or her capacity as a representative of an entity prohibited from making contributions.

(ii) Any person who is prohibited from making contributions or expenditures in connection with an election for Federal office shall be prohibited from acting

as a conduit for contributions earmarked to candidates

or their authorized committees. The provisions of this

section shall not restrict the ability of an organization

or committee to serve as a collecting agent for a separate segregated fund pursuant to 11 CFR 102.6.

(iii) Any person who receives an earmarked contribution shall forward such earmarked contribution to

the candidate or authorized committee in accordance

with 11 CFR 102.8, except that—

(A) A fundraising representative shall follow the

joint fundraising procedures set forth at 11 CFR

102.17.

(B) A person who is prohibited from acting as a conduit pursuant to paragraph (b)(2)(ii) of this section

shall return the earmarked contribution to the contributor.
14a

(c) Reporting of earmarked contributions—(1) Reports by conduits and intermediaries.(i) The intermediary or conduit of the earmarked contribution shall report the original source and the recipient candidate or

authorized committee to the Commission or the Secretary of the Senate, as appropriate (see 11 CFR part

105), and to the recipient candidate or authorized committee.

(ii) The report to the Commission or Secretary shall

be included in the conduit’s or intermediary’s report for

the reporting period in which the earmarked contribution was received, or, if the conduit or intermediary is

not required to report under 11 CFR part 104, by letter

to the Commission within thirty days after forwarding

the earmarked contribution.

(iii) The report to the recipient candidate or authorized committee shall be made when the earmarked

contribution is forwarded to the recipient candidate or

authorized committee pursuant to 11 CFR 102.8.

(iv) The report by the conduit or intermediary shall

contain the following information:

(A) The name and mailing address of each contributor and, for each earmarked contribution in excess of

$200, the contributor’s occupation and the name of his

or her employer;

(B)The amount of each earmarked contribution,the

date received by the conduit, and the intended recipient as designated by the contributor; and

(C) The date each earmarked contribution was forwarded to the recipient candidate or authorized committee and whether the earmarked contribution was

forwarded in cash or by the contributor’s check or by

the conduit’s check.

(v)For eachearmarked contribution passed through

the conduit’s or intermediary’s account, the informa-
15a

tion specified in paragraph (c)(1)(iv) (A) through (C) of

this section shall be itemized on the appropriate schedules of receipts and disbursements attached to the conduit’s or intermediary’s report, or shall be disclosed by

letter, as appropriate. For each earmarkedcontribution

forwarded in the form of the contributor’s check or

other written instrument, the information specified in

paragraph (c)(1)(iv) (A)through (C) of this section shall

be disclosed as a memo entry on the appropriate schedules of receipts and disbursements attached to the conduit’s or intermediary’s report, or shall be disclosed by

letter, as appropriate.

(2) Reports by recipient candidates and authorized

committees. (i) The recipient candidate or authorized

committee shall report each conduit or intermediary

who forwards one or more earmarked contributions

which in the aggregate exceed $200 in any calendar

year.

(ii) The report by the recipient candidate or authorized committee shall contain the following information:

(A) The identification of the conduit or intermediary, as defined in 11 CFR 100.12;

(B) The total amount of earmarked contributions

received from the conduit or intermediary and the date

of receipt; and

(C) The information required under 11 CFR

104.3(a) (3) and (4) for each earmarked contribution

which in the aggregate exceeds $200 in any calendar

year.

(iii)The information specified in paragraph (c)(2)(ii)

(A) through (C) of this section shall be itemized on

Schedule A attached to the report for the reporting period in which the earmarked contribution is received.
16a

(d) Direction or control. (1) A conduit’s or intermediary’s contribution limits are not affected by the forwarding of an earmarked contribution except where

the conduit or intermediary exercises any direction or

control over the choice of the recipient candidate.

(2) If a conduit or intermediary exercises any direction or control over the choice of the recipient candidate, the earmarked contribution shall be considered

a contribution by both the original contributor and the

conduit or intermediary. Ifthe conduit or intermediary

exercises any direction or control over the choice of the

recipient candidate, the report filed by the conduit or

intermediary and the report filed by the recipient candidate or authorized committee shall indicate that the

earmarked contribution is made by both the original

contributor and the conduit or intermediary, and that

the entire amount of the contribution is attributed to

each.
Contribution Limits for 2013-2014

(FEC publication, available at www.fec.gov/info/contriblimitschart1314.pdf)

To each

candidate

or

candidate

committee

per election

To national

party

committee

per

calendar

year

To state,

district &

local party

committee

per calendar year

To any

other

political

committee

per calendar year1

Special

Limits

Individual

may give

$2,600* $32,400* $10,000

(combined

limit)

$5,000 $123,200*

overall biennial limit:

• $48,600*

 to all candi-

 dates

• $74,600*

 to all

 PACs &

 parties2

National Party

Committee

may give

$5,000 No Limit No Limit $5,000 $45,400* to

Senate candidate per campaign3

State, District &

Local Party

Committee

may give

$5,000

(combined

limit)

No Limit No Limit $5,000

(combined

limit)

No Limit

PAC

(multicandidate)4

may give

$5,000 $15,000 $5,000

(combined

limit)

$5,000 No Limit

PAC

(not multicandidate)

may give

$2,600* $32,400* $10,000

(combined

limit)

$5,000 No Limit

Authorized Campaign Committee

may give

$2,0005 No Limit No Limit $5,000 No Limit

_______________________

* These contribution limits are indexed for inflation.

1 A contribution earmarked for a candidate through a political committee counts against the original

contributor’s limit for that candidate. In certain circumstances, the contribution may also count against

the contributor’s limit to the PAC. 11 CFR 110.6. See also 11 CFR 110.1(h).

2 No more than $48,600 of this amount may be contributed to state and local party committees and PACs.

3 This limit is shared by the national committee and the national Senate campaign committee.

4 A multicandidate committee is a political committee with more than 50 contributors which has been

registered for at least 6 months and, with the exception of state party committees, has made contributions to 5 or more candidates for federal office. 11 CFR 100.5(e)(3).

5 A federal candidate's authorized committee(s) may contribute no more than $2,000 per electionto another

federal candidate's authorized committee(s). 11 CFR 102.12(c)(2).

17a
Buckley Scheme BCRA Scheme

$25,000

“Ceiling” on Individual Contributions $74,600 Aggregate Limit

$48,600

Aggregate

Limit

$48,600

Aggregate Limit

$1,000

per election

$2,600

 per election

$5,000

per year

$10,000

per year

$32,400

per year

(base limit) (base limit on contributions to entity)

Candidate PAC State Party

(dist/local)

National Party Candidate PAC State Party

(dist/local)

National Party

18a