No. 12-683 

IN THE

Supreme Court of the United States 

VIRGINIA JAMES, 

 

 Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

 

 Appellee. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 OPPOSITION TO 

MOTION TO DISMISS OR AFFIRM 

 ALLEN DICKERSON

 Counsel of Record 

 TYLER MARTINEZ

 ZAC MORGAN

 ANNE MARIE MACKIN

 CENTER FOR COMPETITIVE

 POLITICS

 124 S. West Street, # 201 

 Alexandria, Virginia 22314 

 (703) 894-6800 

 adickerson@campaignfreedom.org 

February 14, 2013 Counsel for Appellant 
i

TABLE OF CONTENTS 

 

I. All parties agree that this case raises First 

Amendment issues requiring heightened 

scrutiny of the legislative scheme....................... 1

II. &RQWUDU\WRWKH&RPPLVVLRQ·VDVVHUWLRQV

contributions to candidate committees do 

not pose the same threat of circumvention 

as do contributions to parties or political 

committees. ......................................................... 2

III. $SSHOODQW·VUHDGLQJRI6HFWLRQDDLV

correct................................................................... 4

IV. $SSHOODQW·VUHTXHVWHGUHOLHILVERWKDSSURSULDWH

and within the power of the courts to grant....... 7

Conclusion ................................................................ 11

 

 
ii

TABLE OF AUTHORITIES 

 

Cases 

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

Bennett, 131 S. Ct. 2806 (2011).........................6

Ayotte v. Planned Parenthood,

546 U.S. 320 (2006)..................................8, 9, 10

Buckley v. Valeo,

424 U.S. 1 (1976)...................................... passim

Bus. Guides, Inc. v. Chromatic Communs. Enters., 

498 U.S. 533 (1991)............................................7

Citizens United v. FEC,

130 S. Ct. 876 (2010)..........................................8

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984)............................................5

Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156 (2012)........................................6

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986)......................................8, 10

Nat'l Ass'n of Home Builders v. Defenders of

Wildlife,

551 U.S. 644 (2007)............................................4

United States Nat'l Bank of Or. v. Independent Ins. 

Agents of Am.,
iii

508 U.S. 439 (1993)............................................5

 

Constitutions, Statutes, and Regulations 

 

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

2 U.S.C. § 441a(a)(3)(A) ................................... passim

28 U.S.C. § 1746.........................................................7

11 C.F.R. § 110.5(b)....................................................5

76 Fed. Reg. 8368 (Feb 14, 2011)...............................3

78 Fed. Reg. 8530 (Feb. 6, 2013)................................3

Other Authorities

James v. FEC, FEDERAL ELECTION COMMISSION,

http://www.fec.gov/pages/fecrecord/2012/october/

jamesvfec.shtml (last visited Feb. 13, 2013).....6

1

I. All parties agree that this case raises First 

Amendment issues requiring heightened 

scrutiny of the legislative scheme. 

Before addressing points of disagreement, it is 

worth pausing to consider where the parties agree. 

For instance, the FEC recognizes that contribution 

OLPLWV ́¶LPSLQJHRQSURWHFWHGDVVRFLDWLRQDOIUHHGRPV·

E\ ¶OLPLW>LQJ@ RQH LPSRUWDQW PHDQV RI DVVRFLDWLQJ

with a candidate.·μ)(&0RW DW  TXRWLQJBuckley 

v. Valeo, 424 U.S. 1, 22 (1976)). Similarly, the 

Commission notes that the government may carry 

the day only if it  ́GHPRQVWUDWHV D VXIILFLHQWO\

important interest and employs means closely drawn 

to avoid unnecessary abridgment of associational 

IUHHGRPVμ Id. at 6M7 (quoting Buckley, 424 U.S. at 

25).1

While the parties disagree on certain 

particulars, they agree on two points. First, that the 

First Amendment is implicated by contribution 

limits, including those present here. And second,

that as a result, the challenged statute is subject to 

heightened scrutiny.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Appellant believes strict scrutiny is warranted in this case, 

and preserved that issue below. Mot. P.I. at 11. But her case 

does not turn on which variety of heightened scrutiny is 

applied. Id. at 13T Juris. Statement at AppM46, 47.
2

II. &RQWUDU\WRWKH&RPPLVVLRQ·VDVVHUWLRQV

contributions to candidate committees do 

not pose the same threat of circumvention 

as do contributions to parties or political 

committees. 

The Commission and Appellant agree that 

laws impinging on associational freedom must be 

 ́FORVHO\GUDZQμWRD ́VXIILFLHQWO\LPSRUWDQWLQWHUHVWμ

FEC Mot. at 6M7.2 The FEC gives two reasons why 

this statute is so tailored. Neither is persuasive.

Candidates may contribute to other 

candidates, as the FEC notes. FEC Mot. at 12M13. 

But that does not make candidate committees

efficient passMthrough vehicles, especially as 

compared to parties and PACs. For one thing, 

candidate committees may contribute less money to

other candidates than may any other committee 

type: $2,000 compared to $2,500 (for a PAC) or 

$5,000 (for a party committee or multicandidate 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 The Commission maintains that this case is a straightM

forward application of Buckley·V EOHVVLQJ RI D VLQJOH 

aggregate contribution limit. FEC Mot. at 8. But, as Appellant 

has consistently argued, this is not so. Buckley merely upheld 

an overall ceiling on annual giving to all candidates and 

committees, it did not3in any way3pass judgment on the subM

aggregate limits imposed under current law. Buckley, 424 U.S. 

at 38. Rather, as Ms. James noted in her Jurisdictional 

Statement, Buckley determined that the only state interest 

justifying an aggregate contribution limit is to prevent the 

circumvention of the individual candidate contribution limits. 

Juris. Statement at 10. This case concerns the application of 

that principle to a different statutory scheme.
3

PAC). 76 Fed. Reg. 8368, 8370 (Feb. 14, 2011).3 For 

another, there is no dispute that Ms. James could

contribute $70,800 to a variety of political 

committees which could each then contribute to a 

favored candidate or candidates. The FEC again fails 

to show why giving those same funds to additional 

candidate committees poses a greater (or indeed 

equal) threat of circumvention.

7KH &RPPLVVLRQ·V VHFRQG DVVHUWLRQ LV VWLOO

ZHDNHU 1RWLQJ WKDW FDQGLGDWHV PD\  ́WUDQVIHU

FDPSDLJQIXQGVWRWKHLUSDUWLHVRQDPDVVLYHVFDOHμ

LWDUJXHVWKDW ́>W@KHHDVHZLWKZKLFKFRQWULEXWLRQVWR

candidates can become contributions to political 

SDUWLHV XQGHUFXWV DSSHOODQW·V DUJXPHQW WKDW WKH

IRUPHUDUHOHVVGDQJHURXVWKDQWKHODWWHUμ)(&0RW

at 13.

But this makes no sense. It does not matter if 

candidates may contribute funds to their parties, 

because Ms. James could do that directly. Ms. James 

may give $70,800 to party committees. It is precisely 

those funds that she wishes to instead give to 

candidate committees. Logic dictates that, if she 

wished to use the parties as a passMthrough 

mechanism to support particular candidates, she

would do so, instead of adding the additional 2 and 

legally unnecessary 2 layer of multiple candidate 

committees. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 These numbers reflect the limits at the time this action was 

filed. The Commission has since updated the limits for 2013M

2014. 78 Fed. Reg. 8530, 8532 (Feb. 6, 2013).
4

Appellant has explained why giving money 

directly to candidate committees, instead of to PACs 

and parties, lessens the likelihood of contribution 

limit circumvention. 4 Jurs. Statement at 24. The 

FEC has failed to explained why contributing to 

candidates is as dangerous as contributing to other 

types of committees, much less why such 

contributions pose a greater risk.

III. $SSHOODQW·VUHDGLQJRISection 441a(a)(3) is 

correct. 

7KH )(& DJDLQ DUJXHV WKDW  ́>W@KH current 

version of FECA does not contain a single $117,000 

aggregate limit with subMrestrictions on how that 

PRQH\ PXVW EH VSHQWμ )(& 0RW DW  7KLV LV

incorrect, for the reasons presented in the 

Jurisdictional Statement. But certain claims made 

in the Motion to Dismiss or Affirm require a 

response.

)LUVW WKH &RPPLVVLRQ·V DUJXPHQW DQG WKH

GLVWULFW FRXUW·V GHFLVLRQ ZDV EDVHG RQ UHDGLQJ HDFK

aggregate subMlimit in isolation, while declining to 

note their clear, unambiguous, and intended 

mathematical relationship. But  ́>L@W LV D

fundamental canon of statutory construction that 

the words of a statute must be read in their context 

and with a view to their place in the overall 

statutory scheme.μ Nat'l Ass'n of Home Builders v. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 To the extent the Court considers this a question of fact, 

Appellant is entitled to a trial. The scant procedural history of 

this case is explained in the Jurisdictional Statement.
5

Defenders of Wildlife, 551 U.S. 644, 666 (2007) 

(citation and quotation marks omitted). By relying 

on § 441a(a)(3)(A), and ignoring its relationship to 

the very next provision, the district court committed 

WKH HUURU RI  ́Ee[ing] guided by a single sentence or 

PHPEHU RIDVHQWHQFHμ UDWKHU WKDQ  ́ORRN>LQJ@ WR WKH

provisions of the whole law, and to its object and 

SROLF\μ United States Nat'l Bank of Or. v. 

Independent Ins. Agents of Am., 508 U.S. 439, 455 

(1993) (citation omitted). In short, the plain 

ODQJXDJH RI 6HFWLRQ DD VXSSRUWV $SSHOODQW·V

case.

The FEC would generally agree. While it is 

disconcerting to see a federal agency blithely ignore 

its own regulations, the FEC cannot dispute that it 

itself refers to a $117,000 aggregate limit. 11 C.F.R. 

E:KLOHWKH&RPPLVVLRQ·VUHJXODWLRQVGRQRW

 ́DOWHUWKHVWDWXWRU\VFKHPHμ)(&0RWDW they do

provide highly persuasive guidance as to the 

meaning of the statute. Chevron, U.S.A., Inc. v. 

NRDC, Inc., 467 U.S. 837   ́FRQVLGHUDEOH

weight should be accorded to an executive 

department's construction of a statutory scheme it is 

HQWUXVWHG WR DGPLQLVWHUμ LQWHUQDO TXRWDWLRQPDUNV

and citations omitted). 

In attempting to make its regulation 

disappear, the FEC argues that its rule simply notes 

that:

it would be mathematically impossible 

to make total contributions of more 

than $117,000 without either (a) 

making contributions to candidates of 
6

more than $46,200, or (b) making 

contributions to nonM candidate 

entities of more than $70,800. FEC 

Mot. at 10.

But this argument merely restates that the $117,000 

aggregate limit is mathematically required, which is 

another way of saying that it is implicit in the 

statute itself.

Indeed, even in its public description of this 

case the FEC notes that:  ́Ms. James is not 

challenging the biennial limit as a whole. The 

plaintiff claims she will abide by the overall 

DJJUHJDWH OLPLW RI μ 5 See also Ariz. Free 

(QWHU&OXE·V)UHHGRP&OXE3$&Y%HQQHWW131 S. 

&WQQRWLQJWKDW5HVSRQGHQW·V

website contradicted its argument).

Regardless, the Commission cannot now 

ignore its own interpretation of the statute. As this 

CouUW QRWHGMXVW ODVW \HDU GHIHUHQFH WR DQ DJHQF\·V

OLWLJDWLRQ SRVLWLRQ LV  ́XQGRXEWHGO\ LQDSSURSULDWH«

ZKHQ WKH DJHQF\·V LQWHUSUHWDWLRQ LV SODLQO\

erroneous RU LQFRQVLVWHQW ZLWK WKH UHJXODWLRQμ

Christopher v. SmithKline Beecham Corp., 132 S. 

Ct. 2156, 2166 (2012) (quoting and applying Auer v. 

Robbins, 519 U.S. 452, 461M462 (1997)) (internal 

citations omitted) HPSKDVLV DGGHG 7KH )(&·V

attempt to argue that its $117,000 contribution limit 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5 James v. FEC, FEDERAL ELECTION COMMISSION,

http://www.fec.gov/pages/fecrecord/2012/october/jamesvfec.shtm

l (last visited Feb. 13, 2013).
7

is an extraneous nullity is inconsistent with that 

OLPLW·VSUHVHQFHLn the regulation.

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 ́LVRODWHG VWDWHPHQWV IURP WKH OHJLVODWLYH KLVWRU\μ

FEC Mot. at 10, n. 2. But if those statements are 

selective, the Commission appears to agree with the 

selection. Appellant is aware of no countervailing 

HYLGHQFH RI &RQJUHVV·V LQWHQW DQG WKH &RPPLVVLRQ

provides none.

Against these weak responses, Appellant has 

already explained why the statute contains an 

overall aggregate limit. This understanding stems 

from mathematics, the history of FECA as amended, 

and the clear intention of Congress. Indeed, until 

WKLV ODZVXLW WKH )(& DJUHHG ZLWK $SSHOODQW·V

reading of § 441a(a)(3).

IV. $SSHOODQW·VUHTXHVWHGUHOLHILVERWK

appropriate and within the power of the 

courts to grant. 

Both the district court and the Commission 

argue that, should Appellant prevail, sKH ́RUDQ\RQH

HOVH ZRXOG EH IUHH WR JLYH DW OHDVW  PLOOLRQ«WR

FDQGLGDWH FRPPLWWHHVμ )(& 0RW DW  LQWHUQDO

punctuation omitted). This is nonsense. As Appellant 

specifically pled her intention to contribute only 

$117,0003and did so in a sworn6 complaint3she 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 Under 28 U.S.C. § 1746 (2013), a verified statement is made 

under penalty of perjury. See Bus. Guides, Inc. v. Chromatic 

Communs. Enters., 498 U.S. 533, 562 (1991) (Kennedy, J., 
8

could not now simply contribute whatever she likes. 

Nor could anyone else. AsMapplied challenges, by 

their nature, may only be relied upon by the plaintiff 

and those similarly situated. Compare, e.g., FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238, 263 (1986) 

 ́MCFLμ (holding § 441b of FECA unconstitutional 

DV DSSOLHG WR SODLQWLII EHFDXVH  ́>V@RPH FRUSRUDWLRQV

have features more akin to voluntary political 

associations than business firms, and therefore 

should not have to bear burdens on independent 

spending solely because of their incorporated 

VWDWXVμ Citizens United v. FEC, 130 S. Ct. 876, 891 

  ́&LWL]HQV 8QLWHG GRHV QRW TXDOLI\ IRU WKH

MCFL exemption, however, since some funds used to 

make the movie were donations from forMprofit 

FRUSRUDWLRQVμ $ SDUW\ JLYLQJ PRUH WKDQ WKH

aggregate limit of $117,0003especially millions 

more3is manifestly not similarlyMsituated to the 

Appellant.

0RUHRYHU WKH )(& EHOLHYHV WKDW  ́a 

declaration that [Appellant may] contribute more 

than $46,200 but less than $117,000 to candidates in 

HDFK ELHQQLDO HOHFWLRQ F\FOH« LV EH\RQG WKH GLVWULFW

FRXUW·V SRZHU WR JUDQWμ )(& 0RW DW  )RU WKLV

proposition, the Commission cites only Ayotte v. 

Planned Parenthood, 546 U.S. 320, 329 (2006). But 

that case would allow this relief. And this Court has 

previously approved substantially more invasive asM

applied remedies, including in such landmark 

campaign finance cases as Buckley and MCFL.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

dissenting on other grounds)  ́:URQJIXO YHULILFDWLRQ DOUHDG\

VXEMHFWV RQH WR SRWHQWLDO SURVHFXWLRQ IRU SHUMXU\μ (citation 

omitted).
9

The analysis for asMapplied relief is indeed 

guided by Ayotte. But that case stands for the 

proposition that courts need not  ́LQYDOLGDWH >D@ ODZ

ZKROHVDOHμ DQG PD\ LQVWHDG  ́LVVXH D GHFODUDWRU\

MXGJPHQWDQGDQLQMXQFWLRQSURKLELWLQJWKHVWDWXWH·V

XQFRQVWLWXWLRQDO DSSOLFDWLRQμ Ayotte, 546 U.S. at 

331. Indeed, the Ayotte court was comfortable 

reading a new clause3D  ́KHDOWK RI WKH PRWKHUμ

exception3into a New Hampshire law requiring 

parental consent before a minor could obtain an 

abortion. Id. at 327. The Court specifically noted a 

preferHQFH IRU  ́HQMRLQ>LQJ@ RQO\ WKH XQFRQVWLWXWLRQDO

applications of a statute while leaving other 

DSSOLFDWLRQVLQIRUFHμId. at 329 (citations omitted). 

A similar remedy is easily reached here 

because § 441a(a)(3)(A) is unconstitutional only 

insofar as it limits contributors who wish to give the 

entire aggregate limit directly to candidates. The 

remedy is simple: take the aggregate limit for 

parties and PACs, and declare that those funds may 

be contributed to candidates in addition to the 

current candidate aggregate limit. This relief is 

easily understood. Indeed, in the context of its

UHJXODWLRQWKH&RPPLVVLRQEHOLHYHVWKLV ́VXPRIWKH

WZR VHSDUDWH DJJUHJDWH OLPLWVμ LV VR apparent that 

pointing it out has no regulatory force. FEC Mot. at 

9M10.

Regardless, Ayotte notes, in the context of 

severability, that legislative intent remains the 

WRXFKVWRQH 5DWKHU WKDQ DOORZLQJ IRU $SSHOODQW·V

modest relief, the FEC argues that the district court 

would have been forced to entirely eliminate any 
10

aggregate limits on candidate contributions, 

allowing donors to contribute millions of dollars in 

each election cycle. Implicit in its argument is the 

premise that Congress could not have desired that 

result. But Ayotte again explains why this is 

LQFRUUHFW  ́$IWHU ILQGLQJ DQDSSOLFDWLRQ RUSRUWLRQ RI

a statute unconstitutional, [courts] must next ask: 

Would the legislature have preferred what is left of 

LWV VWDWXWH WRQR VWDWXWH DW DOO"μAyotte, 546 U.S. at 

330 (citations omitted). As the FEC notes, the 

answer here is almost certainly no.

Rather, this Court should recognize that 

Congress intended an overall aggregate limit, and 

that § 441a(a)(3)(A) should be ruled unconstitutional 

only insofar as it prevents contributors from giving 

to candidates up to that overall aggregate limit. 

Such a ruling is consistent with Ayotte and 

YLQGLFDWHV &RQJUHVV·V ORQJVWDQGLQJ LQWHUHVW LQ

limiting the overall amount of money any individual 

may contribute to candidates, parties, and PACs.

Finally, there is no doubt that this simple, 

mathematical remedy is far less invasive than what 

this Court has allowed in some of its most robust 

and respected campaign finance decisions. See, e.g., 

Buckley, 424 U.S. at 41M42 UHDGLQJWKHSKUDVH ́DQ\

expenditure«UHODWLYH WR D FOHDUO\ LGHQWLILHG

FDQGLGDWHμWRPHDQDQ\H[SHQGLWXUH ́DGYRFDWLQJWKH

HOHFWLRQ RU GHIHDW RI D FDQGLGDWHμ  Q 

(determining such advocacy must be express, and 

listing suggested magic words to that effect)T 79 

(reading the major purpose requirement into the 

GHILQLWLRQ RI  ́SROLWLFDO FRPPLWWHHμ see also MCFL, 

479 U.S. at 263M264 (establishing a threeMpart test 
11

for nonprofit advocacy organizations exempt from 

the statutory restriction on independent spending).

Conclusion 

While acknowledging that the challenged 

statutory regime poses First Amendment issues 

subject to heightened review, the FEC argues that 

the courts are powerless to intervene. In order to 

make this assertion, the Commission is forced to 

interpret the challenged statute in a way that defies 

mathematical logic, countermands its own 

regulation, and ignores both the history of FECA 

and the clear intention of Congress in passing it. 

This Court should not permit this attempt to avoid 

legal scrutiny.

For these reasons, and for those given in the 

$SSHOODQW·V -XULVGLFWLRQDO 6WDWHPHQW WKH )(&·V

Motion to Dismiss or Affirm should be denied.
12

Respectfully submitted,

ALLEN DICKERSON

Counsel of Record

 TYLER MARTINEZ

 ZAC MORGAN

 ANNE MARIE MACKIN

 CENTER FOR COMPETITIVE 

 POLITICS

 124 S. West Street, Suite 201

 Alexandria, Virginia 22314

 (703) 894M6846

 adickerson@campaignfreedom.org

 

Counsel for Appellant

February 14, 2013