No. 12-536

IN THE

Supreme Court of the United States 

_____________

SHAUN MCCUTCHEON AND

REPUBLICAN NATIONAL COMMITTEE,

Appellants,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

_____________

On Appeal from the United States District Court for 

the District of Columbia

_____________

BRIEF AMICUS CURIAE OF THE COMMITTEE 

FOR JUSTICE IN SUPPORT OF APPELLANTS

_____________

CURT A. LEVEY

The Committee for Justice 

722 12th Street, N.W.,

4th Floor

Washington, DC 20005

(202) 270-7748 

contact@

committeeforjustice.org

SARAH M. SHALF

Counsel of Record

Emory Law School 

Supreme Court 

Advocacy Project

1301 Clifton Road

Atlanta, Georgia 30322

(404) 712-4652

sarah.shalf@emory.edu
i

TABLE OF CONTENTS

TABLE OF CONTENTS...............................................i

TABLE OF AUTHORITIES.......................................iv

INTEREST OF THE AMICUS....................................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT................................................................3

I. Aggregate Limits Improperly Diminish the 

Unique and Vital Roles of Political Parties in 

the Electoral Process..............................................3

A.Aggregate contribution limits direct the 

flow of money to organizations making 

independent expenditures, which have less 

interest in moderation and compromise. ........ 4

1. Aggregate contribution limits allow 

Super PACs and 501(c)(4) organizations 

to exert greater control over the 

electoral process, incentivizing the flow 

of money into independent expenditures, 

leading to the hyper-politicization of 

campaigns. ...................................................6

2. Aggregate contribution limits are 

anticompetitive because they suppress 

parties’ and candidates’ ability to 

fundraise relative to Super PACs and 

501(c)(4) organizations. ...............................8

B.Political parties play unique and vital roles 

in the political process and must be given 

the freedom and opportunity to acquire 

resources to fulfill their important roles....... 10
ii

1. Political parties are well-equipped to 

aggregate policy views and produce a 

common platform.......................................12

2. Political parties tend to moderate 

political views. ...........................................14

3. Political parties are uniquely capable of 

mobilizing and energizing citizens. ..........16

C.Aggregate contribution limits have the 

unique effect of increasing detrimental 

competition between party members............ 18

D.This Court has heard and rejected state 

interests similar to the ones posited by the 

Appellee for upholding aggregate limits in 

this case. ......................................................... 19

II. Data Shows that Aggregate Limits Do Not 

Affect the Perception of Corruption.....................22

A.The government interest must be 

constrained to quid pro quo corruption or 

the appearance thereof, narrowly defined 

by the Supreme Court.................................... 23

B.Data demonstrates that the aggregate 

limits do not affect the public’s perception 

of quid pro quo corruption. ............................ 25

1. The aggregate limits have no effect on 

the public perception of corruption, as 

demonstrated by empirical surveys of 

public opinion over the last several 

decades. ......................................................25

2. The public’s distrust in the government 

is caused by factors other than 

campaign spending, so the aggregate 
iii

limits will never succeed in reducing the 

appearance of corruption...........................29

CONCLUSION...........................................................33
iv

TABLE OF AUTHORITIES

Cases

Branti v. Finkel, 

445 U.S. 507 (1980) ..............................................13

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................22, 26

California Democratic Party v. Jones,

530 U.S. 567 (2000) ...........................16, 19. 21, 22

Citizens United v. Fed. Election Comm'n,

558 U.S. 310 (2010) .......5, 6, 22, 23, 24, 25, 26, 28

Colorado Republican Fed. Campaign Comm. v. 

Fed. Election Comm’n,

518 U.S. 604 (1996) .............................................10

Cousins v. Wigoda,

419 U.S. 477 (1975) .............................................20

Davis v. Bandemer,

478 U.S. 109 (1986) .............................................10

Eu v. San Francisco Democratic Central Comm.,

489 U.S. 214 (1989). ............................................21

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2002) ...................................23, 24, 26

Nixon v. Shrink Missouri Gov’t PAC,

528 U.S. 377 (2000) .............................................32

Norman v. Reed,

502 U.S. 279 (1992) .............................................10

SpeechNow.org v. Fed. Election Comm'n,

599 F.3d 686 (D.C. Cir. 2010) ...............................6

Tashjian v. Republican Party of Connecticut,

479 U.S. 208 (1996) .......................................10, 21
v

Timmons v. Twin Cities Area New Party, 520 U.S. 

351 (1997) .............................................................10

Statutes

U.S.C. § 441a(a) (2006)..........................................3, 27

Other Authorities

Alex Knott, Politicians Create Record Number of 

Joint Fundraising Committees, Rollcall (Sept. 

17, 2010), http://www.rollcall.com/

news/-49934-1.html ................................................3

Beth Ann Rosenson, The Effect of Political Reform 

Measures on Perception of Corruption, 8 

Election L.J. 31 (2009) .........................................31

Brief Amicus Curiae Northern California 

Committee for Party Renewal et al. at 15 n.15, 

California Democratic Party v. Jones, 530 U.S. 

567 (2000) (No. 99-401), 2000 WL 245536 ... 16–17

Brief for Rodney A. Smith as Amicus Curiae 

Supporting Petitioner at 4, McConnell v. Fed. 

Election Comm’n, 540 U.S. 93 (2002) (No. 02-

1674)....................................................................... 9

Clinton Rositer, Parties and Politics in America 

(1960)...............................................................12, 13

David A. Strauss, Corruption, Equality, and 

Campaign Finance Reform, 94 Colum. L. Rev. 

1369 (1994) ...........................................................24

David M. Primo & Jeffrey Milyo, Campaign 

Finance Laws and Political Efficacy: Evidence 

from the States, 5 Election L. J. 23 (2006) ..........30
vi

Donald P. Green & Alan S. Gerber, Get Out the 

Vote: How to Increase Voter Turnout (2d ed. 

2008)......................................................................17

Dylan Matthews, It’s Official: The 112th Congress 

was the Most Polarized Ever, Wash. Post: 

Wonkblog (Jan. 17, 2003), http://www.washi

ngtonpost.com/blogs/wonkblog/2013/01/17/itsofficial-the-112th-congress-was-the-mostpolarized-ever/ ......................................................15

Harvey Mansfield, Political Parties and American 

Constitutionalism, in American Political 

Parties and Constitutional Politics (Peter W. 

Schramm & Bradford P. Wilson eds., 1993) .......11

Ctr. for Responsive Politics, Donor Demographics, 

OpenSecrets.org (last accessed May 11, 2013) 

http://opensecrets.org/overview/donordemogra

phics.php.................................................................9

Restore Our Future, New Normal, YouTube (last 

accessed May 12, 2013) 

http://restoreourfuture.com/new-normal...............8

James W. Endersby et al., Electoral Mobilization 

in the United States, in Handbook of Party 

Politics (Richard S. Katz & William Crotty 

eds., 2006) .................................................11, 16, 18

John H. Aldred, Why Parties? (2d ed. 2011) ............11

John R. Lott, Jr., Campaign Finance Reform and 

Electoral Competition, 129 Pub. Choice 263 

(2006).......................................................................9

Jonathan Haidt & Marc J. Hetherington, Look 

How Far We’ve Come (Sept. 17, 2012), 

http://campaignstops.blogs.nytimes.com/2012/0

9/17/look-how-far-weve-come-apart/....................15
vii

Kay Lawson & Thomas Poquntke, How Political 

Parties Respond: Interest Aggregation 

Revisited (2004)....................................................15

Mancur Olson, The Rise and Decline of Nations 

(1982).....................................................................14

Michael A. Nemeroff, The Limited Role of 

Campaign Finance Laws in Reducing 

Corruption by Elected Public Officials, 49 How. 

L.J. 687 (2006)......................................................28

Michael S. Kang, The End of Campaign Finance 

Law, 98 Va. L. Rev. 1 (2012)..................................4

Nathaniel Persily & Kelli Lammie, Perceptions of 

Corruption and Campaign Finance: When 

Public Opinion Determines Constitutional Law, 

153 U. Pa. L. Rev. 119 (2004) ......26, 27, 28, 30, 31

Rebuttal Declaration of Q. Whitfield Ayres, 

McConnell v. Fed. Election Comm’n, 251 F. 

Supp. 2d 176 (2003) (No. 02-874) ............28, 30, 31

Richard Jankowski, Preference Aggregation in 

Political Parties and Interest Groups: A 

Synthesis of Corporatist and Encompassing 

Organization Theory, 32 Am. J. Pol. Sci. 105 

(1988)...............................................................12, 15
viii

Robert Stein et al., Early Voting in Texas: 

Electoral Reform, Party Mobilization and 

Voter Turnout, prepared for delivery at the 

annual meeting of the American Political 

Science Association, Sept. 1-4, 2005,

Washington, D.C., available at 

http://www.nonprofitvote.org/downloaddocument/electoral-reform-party-mobilizationand-voter-turnout.h

tml ...................................................................17, 18

Russell J. Dalton et al., Political Parties and 

Democratic Linkage: How Parties Organize 

Democracy (2011) .....................................16, 17, 18

Samuel Issacharoff & Pamela Karlan, The 

Hydraulics of Campaign Finance Reform, 77 

Tex. L. Rev. 1705 (1999).........................................4

William J. Keefe, Parties, Politics, and Public 

Policy in America (8th ed. 1998)..........................14
1

INTEREST OF THE AMICUS1

The Committee for Justice is a nonprofit, 

nonpartisan organization dedicated to advancing the 

rule of law by promoting constitutionalist nominees 

to the federal judiciary and educating government 

officials, the media and the American people about 

the dangers of judicial activism and the proper role 

of the courts in interpreting the Constitution. 

Central to the rule of law is the robust enforcement 

of the Bill of Rights — including the First 

Amendment — especially when the political winds 

are blowing in the opposite direction, as is the case 

for the campaign finance regulations at issue here.

Moreover, as a 501(c)(4) organization, the 

Committee for Justice is keenly aware that no 

matter how much money flows to (c)(4)’s and Super 

PACs, these groups cannot serve the unique and 

vital roles that political parties play in the political 

process.

 

1 No party’s counsel authored this brief in whole or in part, 

and no counsel or party made a monetary contribution intended 

to fund the preparation or submission of this brief. No person 

other than amicus or its counsel made a monetary contribution 

to fund the preparation or submission of this brief. Both 

Appellants have provided written consent to the filing of this 

brief and Appellee has provided written blanket consent to the 

filing of all amicus briefs. All consent documents are on file 

with the Clerk.
2

SUMMARY OF THE ARGUMENT

Aggregate contribution limits have a significant 

and divisive effect on the political process. One of the 

groups that is most seriously affected by aggregate 

limits is political parties. Aggregate contribution 

limits channel money away from political parties 

while doing little to restrict the overall flow of money 

into politics. That redirection of funds caused by 

aggregate limits has the effect of marginalizing 

political parties and preventing them from fulfilling 

their key roles: (1) aggregating political views, (2) 

moderating policies, and (3) energizing and 

mobilizing citizens. Moreover, aggregate contribution 

limits have the unique effect of increasing conflict 

between members of the same party, hampering the 

party’s ability to unify candidates and officials.

Aggregate contribution limits also fail to further 

a key purported government interest put forth by the 

Appellee to support the limits: decreasing the 

perception of corruption. In the wake of several 

decisions by this Court limiting the legitimate 

government interests available to support campaign 

finance restrictions, the government’s interest in the 

perception of corruption is forced to carry much of 

the burden of defending these aggregate contribution 

limits. The scope of this interest has been narrowly 

defined by the Supreme Court and must be limited to 

the appearance of quid pro quo corruption. 

Empirical data suggests that the aggregate limits 

have not been successful at decreasing the public’s 

perception of corruption or encouraging public trust 

in government. Campaign finance laws — including 

the aggregate limits — have historically had 
3

minimal effect on levels of trust. Recent studies show 

that levels of trust in the government are dependent 

on social and political factors independent of 

campaign finance restrictions.

ARGUMENT

I. Aggregate Limits Improperly Diminish the 

Unique and Vital Roles of Political Parties 

in the Electoral Process.

One of the groups most affected by aggregate 

limits is political parties. Aggregate limits cause 

political parties to lose the benefit of donors who can 

contribute to both their coffers and those of their 

candidates, diminishing political parties’ traditional 

roles in the political process. Aggregate limits do not 

apply to and therefore preference independent 

expenditure-only committees — more commonly 

known as Super PACs — and 501(c)(4) organizations 

over political parties. 2 See Part I.A. The relative 

marginalization of political parties caused by 

aggregate limits flies in the face of this Court’s 

consistent and unambiguous support for the 

autonomy and freedom of association of political 

 

2 Traditional political actions committees, in contrast to

Super PACs and 501(c)(4) organizations, are subject to the 

aggregate contribution limits. 2 U.S.C. § 441a(a) (2006). 

Another important type of committee is the “joint financing 

committee,” which raises money for a candidate or cause and 

then distributes money among candidate PACs, the national 

party, and state and local parties. See generally Alex Knott, 

Politicians Create Record Number of Joint Fundraising 

Committees, Rollcall (Sept. 17, 2010), http://www.rollcall.com/

news/-49934-1.html.
4

parties. See infra Part I.B. Aggregate limits have a 

unique and lasting impact on political parties by 

spurring conflict between party officials, making it 

harder for the party to serve its key roles. See Part 

I.C. This Court’s precedents support the view that 

parties have significant rights under both the 

freedom of speech and the freedom of association, 

and that even fairly weighty state interests cannot 

overcome those rights. See Part I.D.

A. Aggregate contribution limits direct the flow of 

money to organizations making independent 

expenditures, which have less interest in 

moderation and compromise.

Aggregate contribution limits allow Super PACs 

and 501(c)(4) organizations to exert exaggerated 

control over the political process because their 

independent expenditures are not subject to 

campaign finance regulations. The market for

political monies is a market like any other, in that 

money flows to the “lowest,” that is, the least 

regulated point.3 The aggregate contribution limits 

force money out of the hands of the parties and their 

candidates, the central political actors, and into the 

hands of Super PACs and 501(c)(4) organizations, 

which face far fewer regulations. As discussed 

 

3 In academia, this is known as the “hydraulics” of 

campaign finance reform. See Samuel Issacharoff & Pamela 

Karlan, The Hydraulics of Campaign Finance Reform, 77 Tex. 

L. Rev. 1705 (1999). In the post-Citizens United era, one scholar 

has referred to the flow of money into the recently deregulated 

area of independent expenditures as “reverse hydraulics.” See

Michael S. Kang, The End of Campaign Finance Law, 98 Va. L. 

Rev. 1 (2012).
5

further in Part II, aggregate contribution limits have 

no material effect on the presence or appearance of 

quid pro quo corruption. Instead, they leave 

politically active donors with no option but to give 

money to organizations making independent 

expenditures. 

Aggregate contribution limits have the perverse 

effect of deregulating portions of the very democratic 

process they seek to protect. Aggregate limits 

weaken the influence of established political parties 

and their candidates, and strengthen the largely 

unregulated group of political actors operating as

Super PACs and 501(c)(4) organizations. Their 

effects on parties and candidates are particularly 

pronounced following the deregulation of 

independent expenditures in the wake of Citizens 

United v. FEC, 558 U.S. 310 (2010). In this postCitizens United era, aggregate contribution limits 

are particularly pernicious.

Aggregate contribution limits suppress the ability

of parties and candidates to advance their goals and 

key positions in our democracy by directing the flow 

of campaign funds away from contributions to 

political parties and candidates, and toward the 

independent expenditures of Super PACs and 

501(c)(4) organizations.
6

1. Aggregate contribution limits allow Super 

PACs and 501(c)(4) organizations to exert 

greater control over the electoral process, 

incentivizing the flow of money into 

independent expenditures, leading to the

hyper-politicization of campaigns.

Campaign spending has increasingly flowed into 

the war chests of Super PACs and 501(c)(4) 

organizations and thus into independent 

expenditures. For example, during the 2006 election 

cycle, approximately $75 million was spent on 

independent expenditures. During the 2010 election 

cycle, spending on independent expenditures 

exploded to roughly $300 million. Id. at 42. While it 

may have once been true that campaign finance 

regulations controlled all the major channels 

through which political money moves, the stark 

reality of post-Citizens United campaign finance is 

that they now control only a small fraction of the 

money.

Independent expenditures, in the wake of

Citizens United and SpeechNow.org v. FEC, are 

virtually unregulated. 599 F.3d 686 (D.C. Cir. 2010).

In the era of deregulated independent expenditures, 

aggregate contribution limits do not further 

candidate or officeholder autonomy as intended, but

rather limit candidate competition with Super PACs 

and 501(c)(4) organizations. While it is true that 

independent expenditures must be made in the 

absence of coordination with a campaign, the 

deregulation of independent expenditures has 

allowed such speech to dominate the market at the 
7

expense of that endorsed by the actual campaigns. 

With their budgets and ability to promote their 

agendas marginalized, Super PACs and 501(c)(4) 

organizations are in a better position to disseminate 

political messages than the parties. When the 

parties and candidates need to rely on Super PACs

and 501(c)(4) organizations to disseminate political 

messaging, that message is controlled not by parties 

or candidates, but by Super PACs and 501(c)(4) 

organizations. 

The burden of aggregate contribution limits on 

parties is exacerbated by the fact that their 

competitors, at least when speaking through 

independent expenditures, are subject to no such 

limitations. An individual may contribute no more 

than $74,600 and $48,600 to all PACs and parties 

and all candidates per election cycle, respectively. 

See Federal Election Commission, Contributions,

http://www.fec.gov/pages/-brochures/contrib.shtml.

As such, parties and candidates are limited to 

spending on ads and other forms of messaging within 

the confines imposed by these contribution limits. 

Super PACs and 501(c)(4) organizations, however, 

are not so limited. They can use the funds of one 

wealthy donor to spread their message to the voting 

populace. In this sense, aggregate contribution limits 

make it difficult for parties and candidates to 

effectively compete with Super PACs and 501(c)(4) 

organizations for control of the political message.

Aggregate contribution limits allow Super PACs 

and 501(c)(4) organizations to exert greater influence 

over the electoral process by incentivizing political 

money to independent expenditures, which, in turn, 

forces parties and candidates — and indeed the 
8

entire public debate — to align themselves with 

those entities’ narrow, less moderate agendas and 

more inflammatory rhetoric. Take, for example, the 

“attack ad” released by Priorities USA Action, a 

Super PAC, against Mitt Romney during the 2012 

election cycle titled “Understand.” Priorities

USAaction, Understand, Youtube (Aug. 7, 2012), 

http://youtube.com/watch?v=Nj70XqOxptU. The ad 

claims that while Romney was CEO of Bain Capital, 

he and others made millions shutting down a paper 

plant, leaving the workers and their families to 

suffer a loss of healthcare benefits.4 As a result of 

public outcry in response, Romney was forced to 

address these comments despite their apparent 

inaccuracy. There was little disincentive to run such 

an inflammatory and inaccurate ad because the 

Barack Obama campaign and the Democratic 

National Committee could disavow responsibility for 

this independent expenditure.

2. Aggregate contribution limits are 

anticompetitive because they suppress 

parties’ and candidates’ ability to fundraise 

relative to Super PACs and 501(c)(4) 

organizations.

Aggregate contribution limits suppress the ability 

of parties and candidates to fundraise relative to 

Super PACs and 501(c)(4) organizations by forcing 

 

4 Such ads were released by proponents of both presidential 

candidates in the 2012 election. For an example of an Super 

PAC’s attack on Barack Obama, see Restore Our Future’s ad 

titled “New Normal.” Restore Our Future, New Normal, 

YouTube (May 11, 2013) http://restoreourfuture.com/newnormal.
9

them to expand the sheer volume of donors. While 

parties and candidates can theoretically turn to 

growing their donor bases, the reality is that the 

volume of donors cannot be substantially increased. 

For parties and candidates, expanding donor 

numbers is no small feat. During the 1999-2000 

election cycle only about 3.5 million Americans, or 

approximately 1.7% of the voting population,

contributed to any party or candidate. Brief for 

Rodney A. Smith as Amicus Curiae Supporting 

Petitioner at 4, McConnell v. Fed. Election Comm’n, 

540 U.S. 93 (2002) (No. 02-1674). During the 2010 

election cycle, 0.53% of the U.S. population 

accounted for two-thirds of all the money donated to 

parties and candidates. Ctr. for Responsive Politics, 

Donor Demographics, OpenSecrets.org (last accessed 

May 11, 2013) http://opensecrets.org/overview/donor

demographics.php.

Additionally, aggregate contribution limits are 

anticompetitive in that they reduce the ability of 

parties to help challengers defeat incumbents. 

Research indicates that limits on contributions, 

particularly to political parties, not only have a 

substantial negative effect on a challenger’s chances 

of success against an incumbent, but also reduce the 

overall number of challengers who run for election. 

See John R. Lott, Jr., Campaign Finance Reform and 

Electoral Competition, 129 Pub. Choice 263, 292 

(2006). Such effects are due to the fact that 

aggregate contribution limits, and other campaign 

finance restrictions, benefit incumbents by making it 

difficult for challengers to raise enough money. Id.

Incumbents already possess a great deal of political 

capital, and, as a result, parties are less likely to 

invest their funds, limited substantially by aggregate 
10

contribution limits, in the uphill battles of 

challengers. Id. Aggregate limits do not decrease the 

presence of corruption, but they do artificially curtail 

the pool of viable candidates available to parties.

B. Political parties play unique and vital roles in

the political process and must be given the 

freedom and opportunity to acquire resources 

to fulfill their important roles.

The freedom to associate in pursuit of common 

political ideals is “an inseparable aspect of the 

‘liberty’ assured by the Due Process Clause of the 

Fourteenth Amendment, which embraces freedom of 

speech.” Tashjian v. Republican Party of Connecticut, 

479 U.S. 208, 214 (1996) (citing NAACP v. Alabama 

ex rel. Patterson, 357 U.S. 449, 460 (1958)). As a 

primary conduit of that important liberty interest, 

political parties play a vital role in our 

“constitutional tradition.” Colorado Republican Fed. 

Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 

604, 630 (1996) (Kennedy, J., dissenting); see also id.

at 616 (majority opinion) (noting that “independent 

expression of a political party’s views is ‘core’ First 

Amendment activity”).5 Parties are able to aggregate 

 

5 See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 

351, 357–58 (1997) (“The First Amendment protects the right of 

citizens to associate and to form political parties for the 

advancement of common political goals and ideas.”); Norman v. 

Reed, 502 U.S. 279, 288 (1992) (noting the “constitutional right 

of citizens to create and develop new political parties”); see also

Davis v. Bandemer, 478 U.S. 109, 144–45 (1986) (O’Connor, J., 

concurring) (“There can be little doubt that the emergence of a 

strong and stable two-party system in this country has 

contributed enormously to sound and effective government. The 

preservation and health of our political institutions, state and 
11

the views of many into discrete and clear viewpoints, 

create compromise-based solutions when confronted 

with many different positions, and then work 

towards translating those views into policy. However, 

aggregate limits prevent parties from serving these 

key functions because, as demonstrated in Part I.A, 

aggregate limits divert important resources from 

political parties.

Political parties have been an essential part of 

American politics from the very first votes of 

Congress. See generally John H. Aldred, Why 

Parties? 67–101 (2d ed. 2011). Parties now perform 

the “real work of American politics.” Harvey 

Mansfield, Political Parties and American 

Constitutionalism, in American Political Parties and 

Constitutional Politics 3 (Peter W. Schramm & 

Bradford P. Wilson eds., 1993). There are few 

American institutions with a more important role in 

electoral politics and actual representation of voters: 

“Political parties have repeatedly been acknowledged 

as the critical link to democratic governance.” 

Handbook of Party Politics 1 (Richard S. Katz & 

William Crotty eds., 2006). The volumes of legal and 

political science literature are peppered with 

expositions on the legal, theoretical, and practical 

importance of political parties. See id. (identifying 

several landmark studies on the role of political 

parties). 

Political parties are unique in their breadth and 

importance. Because of their unique characteristics, 

 

federal, depends to no small extent on the continued vitality of 

our two-party system, which permits both stability and 

measured change.”)
12

they serve at least three key functions: aggregating 

views, moderating mainstream political views, and 

mobilizing citizens to become active in politics. 

1. Political parties are well-equipped to 

aggregate policy views and produce a 

common platform.

First, one of the most important roles of a 

political party is the aggregation function. 

Aggregating views is the process by which political 

parties take disparate and often competing interests

and distill them into a common set of views. When 

parties act in this way, they are sometimes known as 

“encompassing organizations” because they 

encompass a great number of different viewpoints. 

E.g., Richard Jankowski, Preference Aggregation in 

Political Parties and Interest Groups: A Synthesis of 

Corporatist and Encompassing Organization Theory, 

32 Am. J. Pol. Sci. 105 (1988).

Many ideas that are mainstream today once 

began as fringe ideas, supported by only small 

players in the political arena. But many of those 

ideas were eventually funneled into political parties 

and given the platform they needed because of the 

breadth and reach of political parties. See Clinton 

Rositer, Parties and Politics in America 42–44 (1960).

Political parties are “perhaps best fitted of all 

agencies to convert formless hopes or frustrations 

into proposals that can be understood, debated, and, 

if found appealing, approved by the people.” Id. at 42.

A simple example of the aggregation function 

occurs when parties are faced with related policies 

that can have important overlapping but non-obvious 

effects:
13

For example, the steel industry might be 

pursuing protectionism to save itself from 

foreign competition. If protectionist legislation 

is passed, other countries might reciprocate 

with import restrictions, for example, against 

U.S. electronics. However, if both steel and 

electronics were represented by the same 

association, that association would have to 

take into consideration the externality 

(countervailing trade restrictions) in proposing 

trade legislation. Since such an encompassing 

organization, by definition, represents both 

the steel and trade industry, the 

externality . . . is not external . . . Therefore, 

the probability that such an encompassing 

organization would pursue protectionist trade 

policies is substantially reduced.

Id. This example demonstrates how parties that 

represent factions with similar but occasionally 

differing views can aggregate views into a common 

position beneficial to all. Modern major political 

parties are quite simply too large to be controlled by 

any single faction. See Branti v. Finkel, 445 U.S. 507, 

582 (1980) (Powell, J., dissenting) (“[Broad-based 

parties] serve as coalitions of different interest that 

combine to seek national goals. The decline of party 

strength inevitably will enhance the influence of 

special interest groups whose only concern all too 

often is how a political candidate votes on a single 

issue.”).

While parties are well-equipped to consider the 

full spate of externalities that arise from a given 

position, single-issue organizations are less likely to 

consider the full range of costs and benefits. Single-
14

issue organizations are more likely to be the lone 

recipients of the benefits from their desired position 

and are less likely to be harmed by the true costs. 

See Mancur Olson, The Rise and Decline of Nations 

46–47 (1982). The size and breadth of political 

parties, however, in contrast to comparable Super 

PACs and single-interest organizations, makes 

parties more likely to consider a wide variety of 

viewpoints.

2. Political parties tend to moderate political 

views.

Second, parties can be an important mechanism 

for moderating political views. Political parties tend 

to be moderating forces in American politics because 

of their fierce quests for votes and their need to 

appeal to as many voters as possible. In order to 

appeal to as many voters as possible, parties 

frequently moderate their positions and rhetoric. 

William J. Keefe, Parties, Politics, and Public Policy 

in America 69–71 (8th ed. 1998). Even when some 

party leaders may want to take extreme positions, 

the size and breadth of political parties mean that 

nearly all major decisions are the result of 

moderating compromise. Id. at 70. Moreover, they 

serve an important role in creating compromise 

within narrowly focused factions; they create one 

clearinghouse for ideas to be developed and then put 

into action. See generally Kay Lawson & Thomas
15

Poquntke, How Political Parties Respond: Interest 

Aggregation Revisited (2004); Jankowski, supra.6

The need for political parties to play their 

moderating role is more salient today than ever 

before. By at least one measure, the recently elected 

112th Congress was the most polarized ever, 

featuring an uptick in ideological polarization from 

both parties. Dylan Matthews, It’s Official: The 

112th Congress was the Most Polarized Ever, Wash. 

Post: Wonkblog (Jan. 17, 2003), http://www.washi

ngtonpost.com/blogs/wonkblog/2013/01/17/its-officialthe-112th-congress-was-the-most-polarized-ever/.

The only good news is that “it is mathematically 

impossible for [C]ongress to get much more 

polarized.” Jonathan Haidt & Marc J. Hetherington, 

Look How Far We’ve Come (Sept. 17, 2012), 

http://campaignstops.blogs.nytimes.com/2012/09/17/l

ook-how-far-weve-come-apart/.

National politics have always seen an ebb and 

flow between polarized and centrist politics, but 

aggregate contribution limits threaten to impose a 

structural change that clogs the natural pendulum of 

national politics. The need for parties to serve as a 

clearinghouse of ideas has never been greater.

The widely disseminated attack ads from the 

2012 campaign are illustrative of the effect that 

polarization can have on civic discourse. See Part 

I.A.2. When unaccountable Super PACs and 

501(c)(4) organizations run negative attack ads, they 

 

6 For further discussion on the role of Super PACs and 

501(c)(4) organizations in politicizing the electoral process, see 

Part I.B.
16

quickly dominate the news cycle, thereby hijacking 

the national debate over important issues.

Increasingly powerful, polarized organizations not 

only control how candidates and parties behave, but 

how ordinary citizens view national politics.

Comparatively moderate political parties are less 

likely to produce and air the same number and type 

of attack ads precisely because they are more 

accountable for their behavior.

3. Political parties are uniquely capable of 

mobilizing and energizing citizens.

Finally, political parties play an important role in 

mobilizing citizens to vote. Political parties are able 

to perform this function because their strengths 

align well with the factors that most heavily 

influence voter engagement and turnout. Generally, 

voter turnout is a function of (1) underlying 

individual interest in an election, (2) enthusiasm for 

a race based on the attention it receives, and (3) 

labor-intensive efforts to mobilize voters on a nearly 

person-to-person basis. See Russell J. Dalton et al., 

Political Parties and Democratic Linkage: How 

Parties Organize Democracy 57 (2011); James W. 

Endersby et al., Electoral Mobilization in the United 

States, in Handbook of Party Politics 330 (Richard S. 

Katz & William Crotty eds., 2006). One study from 

the 1990s revealed that persons who were affiliated 

with one of the two major American political parties 

were “more likely to have voted, to be interested in, 

pay attention to, or care about the results of the 

presidential elections, than persons unaffiliated with 

a political party, by significant margins.” Brief

Amicus Curiae Northern California Committee for 
17

Party Renewal et al. at 15 n.15, California 

Democratic Party v. Jones, 530 U.S. 567 (2000) (No. 

99-401), 2000 WL 245536.

Political parties are particularly well suited to 

address the last two factors, enthusiasm and voter 

turnout. Their human resources and organization

provide a platform through which they can call 

attention to elections and reach out to individual 

potential voters. Individualized contact has been 

identified as a vital element in voter participation 

studies and social science research supports the view 

that voters turn out with increased frequency if they 

are personally asked to do so. See Donald P. Green & 

Alan S. Gerber, Get Out the Vote: How to Increase 

Voter Turnout (2d ed. 2008). The most effective 

techniques for getting citizens engaged in elections 

are also the most organizationally challenging; 

reaching out to voters year after year requires a 

stunning amount of resources. Because of their 

access to volunteers and party faithful, political 

parties are especially gifted at bringing voters to the 

voting booth. See Dalton et al., supra, at 57–74; see 

also Robert Stein et al., Early Voting in Texas: 

Electoral Reform, Party Mobilization and Voter 

Turnout, prepared for delivery at the annual meeting 

of the American Political Science Association, Sept. 

1-4, 2005, Washington, D.C., available at 

http://www.nonprofitvote.org/download-document/ele

ctoral-reform-party-mobilization-and-voter-turnout.h

tml (“[W]ithout the efforts of political parties and 

their candidates, electoral reforms are likely to 

continue to have a marginal effect on voter turnout.”).

For political parties, their “livelihoods and very 

survival depend[] on who turns out to vote.” Dalton 
18

et al., supra at 57.7 Out of necessity then, parties 

have “developed extensive mechanisms to identify 

potential voters and to mobilize them on election 

day.” Id.

Policy-oriented groups and get-out-the-vote 

organizations continue to influence voter 

mobilization, “but their resources and efforts pale in 

comparison with the activities of political parties.” Id.

at 58. In the last decade, political parties have taken 

note of social science research demonstrating the 

importance of personal contact and have “invested 

substantial resources in [get out the vote efforts], 

canvassing, and grassroots programs.” Endersby et 

al., supra, at 334.

C. Aggregate contribution limits have the unique 

effect of increasing detrimental competition 

between party members.

Among campaign finance restrictions, aggregate 

contribution limits impose unique harms on 

candidate and parties. Among the most notable 

unique harms is that they create competition within 

parties for coveted donor support. Forced intra-party 

competition has the effect of negatively decreasing 

cooperation and compromise, and instead forces 

 

7 In this way, political parties differ dramatically from 

policy-oriented Super PACs and 501(c)(4) organizations. Groups 

advocating a particular position are concerned with garnering 

enough votes in the legislature for their policy preferences, 

regardless of how those votes come to be. Political parties, by 

comparison, have a much more direct and single-minded 

interest in who turns out to vote: the scope of their governing 

power largely begins and ends in the election process. 
19

factions to break away from the party apparatus to 

jockey for funds. See Brief for Appellant Shaun 

McCutcheon at 28–31.

Intra-party cooperation and cohesion is 

threatened by the aggregate contribution limit 

because the limit forces candidates and elected 

officials to fight for the limited funds available for 

their general cause. For example, a wealthy donor 

with fervently Democratic ideals might choose to 

give the maximum base contribution to a dozen 

different Democratic party committees at the 

national, state, and local levels, as well as to 

individual candidates. But because of the aggregate 

limit, she can give that maximum contribution to 

only a handful of those committees and fewer 

candidates. The aggregate limit incentivizes 

committees and individual candidates to move 

toward the areas where they can jostle for 

contributions from key donors. Without the 

aggregate limit—in other words, with only the base 

limit—party officials at every level could work 

together to build a comprehensive platform without 

fear of losing donations to other parts of their own 

organization.

D. This Court has heard and rejected state 

interests similar to the ones posited by the 

Appellee for upholding aggregate limits in this 

case.

This Court has frequently recognized that 

political parties have a right to a certain degree of 

autonomy and self-governance that largely stems 

from the First Amendment guarantee of the right to 

association. See, e.g., California Democratic Party v. 
20

Jones, 530 U.S. 567, 572 (2000) (“Representative 

democracy in any populous unit of governance is 

unimaginable without the ability of citizens to band 

together in promoting among the electorate 

candidates who espouse their political views. The 

formation of national political parties was almost 

concurrent with the formation of the Republic 

itself.”) (citation omitted). While those cases differ 

from the one at bar in some ways, they all signal this 

Court’s recognition of the important and unique 

value of political parties. This Court’s precedents 

also caution against the overregulation and 

marginalization of parties. Against this precedent, 

aggregate limits impermissibly hamper the right of 

political parties to set their own agenda and interact 

with their own membership. 

In the early 1970s, the Court acknowledged that 

government intervention affecting parties implicated 

“[v]ital rights of association” even in the face of wellestablished state interests. See Lowenstein, supra, at 

457. In later cases, this Court has always been 

careful to protect the right of association that 

belongs to both the party and its members. See, e.g., 

Cousins v. Wigoda, 419 U.S. 477 (1975) (overturning 

a state court intervention into a political party’s 

internal affairs).

Through the 1980s to the current day, the Court 

continued to expand the right of association for 

political parties. The Court has been protective of the 

right of political parties to “broaden the base of 

public participation in and support for [their] 

activities,” even going so far as to recognize that 

broadening a base of support “is conduct undeniably 

central to the exercise of the right of association.” 
21

Tashjian v. Republican Party of Connecticut, 479 U.S. 

208, 215 (1986); see also supra Part I.B (noting the 

important role parties play energizing citizens and 

mobilizing them to vote). This skepticism of 

government intervention into the affairs of political 

parties has continued in more recent cases. See, e.g.,

California Democratic Party v. Jones, 530 U.S. 567 

(2000); Eu v. San Francisco Democratic Central 

Comm., 489 U.S. 214 (1989).

These cases and others demonstrate this Court’s 

consistent and strong recognition of party rights, 

even in the face of significant state interests. In each 

of the cases where the Court upheld party autonomy 

over state regulation, state governments asserted 

substantive and meaningful interests. However, 

those interests were rarely strong enough to 

overcome the freedom of association recognized for 

political parties. 

For example, in Tashjian v. Republican Party of 

Connecticut, Connecticut defended a closed primary 

on the grounds that it “ensur[ed] the 

administrability of the primary system, prevent[ed] 

raiding, avoid[ed] voter confusion, and protect[ed] 

the responsibility of party government.” 479 U.S. 208, 

217 (1986). In San Francisco Democratic Central 

Committee, California defended a prohibition on 

endorsements by official governing bodies with twin 

state interests in “stable government and protecting 

voters from confusion and undue influence.” 489 U.S. 

214, 226 (1989). In California Democratic Party v. 

Jones, California offered a whopping seven state 

interests in support of its blanket primary, 

including: “producing elected officials who better 

represent the electorate,” “expanding candidate 
22

debate beyond the scope of partisan concerns,” and 

“ensur[ing] that disenfranchised persons enjoy the 

right to an effective vote.” 530 U.S. 567, 582–86 

(2000).

This Court was able to quickly evaluate and 

discard each of these purported state interests. Some 

of the discarded interests were labeled as worthwhile 

and “highly significant values.” See, e.g., id. at 584. 

But this Court declined to evaluate those values “in 

the abstract,” id., instead choosing to first decide 

whether the state’s particular restriction furthered a 

particular interest. Concluding that the state’s

attractive values were hardly furthered by their 

restrictions on the vital rights of parties, this Court 

discarded even the most weighty state interests.

II. Data Shows that Aggregate Limits Do Not 

Affect the Perception of Corruption.

The aggregate limits cannot be justified by the 

government interest in preventing the appearance or 

occurrence of corruption. Citizens United v. Fed. 

Election Comm’n, 558 U.S. 310, 344 (2010) (citing 

Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam)). 

The government interest that justifies campaign 

finance restrictions is quite narrow: It is strictly 

limited to preventing the appearance or occurrence 

of quid pro quo corruption. The aggregate limits, 

imposed in addition to the base contribution limits, 

must be justified by a cognizable risk that the base 

limits will be circumvented, Buckley, 424 U.S. at 38, 

allowing an individual to avoid the government 

restrictions and engage in activity that is covered 

under the narrow definition of quid pro quo 

corruption.
23

Data suggests that campaign finance restrictions 

(including the aggregate limits) have been largely 

ineffective at improving the public’s trust in 

government. Instead, public mistrust in the 

government is largely influenced by other factors, 

and in some cases, stricter campaign restrictions 

have even increased perceptions of corruption.

A. The government interest must be constrained 

to quid pro quo corruption or the appearance 

thereof, narrowly defined by the Supreme 

Court.

The government interest in preventing the 

appearance of corruption is strictly limited to quid 

pro quo corruption: “dollars for political favors.” 

Citizens United, 558 U.S. at 360 (citing Fed. Election 

Comm’n v. Nat’l Conservative Political Action Comm., 

470 U.S. 480, 497 (1985)).

Without a strict quid pro quo definition, the term 

“corruption” is so vague it becomes meaningless. 

Without such a definition, the government interest 

in “corruption” is “unbounded and susceptible to no 

limiting principle.” Id. (citing McConnell, 540 U.S. at

296 (Kennedy, J., concurring in the judgment in part 

and dissenting in part)). Absent this “limiting 

principle,” the term “corruption” can improperly be 

applied to any number of nebulous concepts that the 

government has no proper interest in managing, 

such as: 1) gratitude, 2) citizens’ access to elected 

officials, and even 3) inequality in amounts of 

political speech. 

Gratitude does not constitute corruption. The 

Court has made clear that the mere fact that an 

elected official feels grateful does not give rise to the 
24

sort of corruption that the government has an 

interest in preventing. Id.; McConnell 540 U.S. at 

297 (Kennedy, J., concurring in the judgment in part 

and dissenting in part). This limitation makes sense: 

an elected official may feel grateful for a local 

newspaper endorsement or the votes of constituents. 

This gratitude, however, is not quid pro quo

corruption. 

Likewise, access to, or influence over, an elected 

official is not corruption. Citizens United, 558 U.S. at 

360 (“the appearance of influence or access will not 

cause the electorate to lose faith in this democracy”); 

McConnell, 540 U.S. at 297 (Kennedy, J., concurring 

in the judgment in part and dissenting in part). As 

the Court has noted, our entire system of 

representative democracy is “premised on the 

responsiveness” of elected leaders to their 

constituents. McConnell, 540 U.S. at 297 (Kennedy, 

J., concurring in the judgment in part and dissenting 

in part). The court has been clear that “the 

appearance of influence or access will not cause the 

electorate to lose faith in this democracy.” Citizens 

United, 558 U.S. at 360. 

Finally, impermissible “inequality” arguments 

about the “inequality” of political speech are often 

implicit in overbroad definitions of corruption. See

David A. Strauss, Corruption, Equality, and 

Campaign Finance Reform, 94 Colum. L. Rev. 1369, 

1371–75 (1994) (arguing that much of the 

“corruption problem” could be eliminated if the 

“inequality problem” was solved). However, a 

government interest in “equalizing” political speech 

has long been rejected by the Court. Citizens United, 

558 U.S. 349-52; 424 U.S. at 47–49 (“[T]he concept 
25

that government may restrict the speech of some 

elements of our society in order to enhance the 

relative voice of others is wholly foreign to the First 

Amendment”). Just as the discredited “antidistortion” argument was rejected as implicitly 

seeking to “equalize” political speech, Citizens United,

130 S. Ct. at 904, managing the public’s perception of 

corruption caused by unequal amounts of political 

speech does not constitute a proper government 

interest. Id. at 910.

In sum, the Court has been clear that the 

government interest in managing public perception 

is strictly limited to perceived quid pro quo

corruption and does not extend to cover gratitude, 

access, or inequality.

B. Data demonstrates that the aggregate limits do 

not affect the public’s perception of quid pro 

quo corruption.

Campaign finance limits have no effect on the 

public perception of corruption, as demonstrated by 

empirical surveys of public opinion over the last 

several decades. This suggests that the marginal 

effect of the additional aggregate limits likewise does 

not improve the public’s trust in the government. 

1. The aggregate limits have no effect on the 

public perception of corruption, as 

demonstrated by empirical surveys of 

public opinion over the last several 

decades. 

The aggregate limits, then, cannot be justified as 

fulfilling a legitimate government interest in 
26

decreasing the perception of corruption because the 

evidence suggests that campaign finance restrictions 

– including the aggregate limits – have had no 

appreciable impact on that perception. This evidence 

calls into question the Buckley assumption that 

uncontrolled campaign finance will result in an 

increased public appearance of government 

corruption. Buckley, 242 U.S. at 27. It should also 

cast doubt on the argument that the limits are 

“closely drawn,” McConnell 540 U.S. at 136, or even 

substantially related to the asserted government 

interest. Aggregate limits have no impact on the 

perception of corruption.

Data demonstrates that the aggregate limits 

enacted in 1974 (Federal Election Campaign Act 

[“FECA”]) and 2002 (Bipartisan Campaign Reform 

Act [“BCRA”]) have not been successful at reducing 

the appearance of corruption among the public or 

increasing the public’s trust in the government. 8

Nathaniel Persily & Kelli Lammie, Perceptions of 

Corruption and Campaign Finance: When Public 

Opinion Determines Constitutional Law, 153 U. Pa. 

L. Rev. 119, 147 fig.1 (2004) (demonstrating that 

public trust levels dropped significantly in the early 

1970s and 80s, suggesting that the 1974 passage of 

FECA, including the original aggregate limits had 

 

8 As noted above, this is one of the two traditional 

government interests that justify campaign finance restrictions. 

The other interest, preventing the occurrence of corruption, is 

beyond the scope of this brief and will not be discussed. It is 

worth noting, however, that both government interests are 

strictly limited to quid pro quo corruption. Citizens United, 558 

U.S. at 360.
27

little to no effect on the public perception of 

corruption).

The public perception that the government was 

“crooked” or controlled by “special interests” lessened 

for a short time following FECA. However, public 

distrust of government soon began to rise again and 

by the early 1990s, public trust in the government 

was even lower than pre-FECA levels, 

notwithstanding the FECA restrictions, including 

aggregate limits. Id. Although public trust in the 

government improved in the mid- to late-90s, this 

increase in trust occurred despite the enormous 

growth of “soft money” expenditures during this time. 

Id. at 148. 

In 2002, BCRA was enacted, imposing new 

campaign restrictions, including aggregate limits. 2 

U.S.C. § 441a(a)(3) (2006). Like FECA, the new law 

had little appreciable impact on the public levels of 

trust in the government. Persily & Lammie, supra, 

at 149. Although there was a brief increase of public 

trust following BCRA, id., within a mere two years, 

trust returned to the same low levels that persisted 

prior to BCRA. Id. The brief increase came despite 

the fact that the law increased the dollar amount of 

donations allowable under the aggregate limit, 2 

U.S.C. § 441a(a)(3) (2006).

The fact that the FECA and BCRA restrictions, 

including aggregate limits, have had such a limited 

effect on the public’s trust in government calls into 

question the utility of the aggregate limits. 

Additionally, surveys of state laws with strict 

aggregate limits show little impact on voter 

“engagement” (as measured by participation levels). 
28

Michael A. Nemeroff, The Limited Role of Campaign 

Finance Laws in Reducing Corruption by Elected 

Public Officials, 49 How. L.J. 687, 704–14 (2006).

This implicitly suggests that even in states without 

an aggregate limit on campaign finance, there is not 

such a widespread perception of corruption that it 

impacts the willingness of voters to participate in the 

election. 

In the past, the government has sought to justify 

campaign finance restrictions by claiming the 

restrictions result in a positive effect on the 

perception of corruption, but data used in these 

arguments have been based on polls relying on 

misleading or vague questions. In McConnell, 

surveys purporting to demonstrate an improvement 

in public perception of corruption were not properly 

focused on the limits at issue. Rebuttal Declaration 

of Q. Whitfield Ayres, McConnell v. Fed. Election 

Comm’n, 251 F. Supp. 2d 176 (2003) (No. 02-874).

When the surveys were repeated using the proper 

contribution limits, the limits were shown to have no 

appreciable impact on public’s perception of 

corruption. Id.

Additionally, measures of public opinion used to 

justify the aggregate limits are irrelevant unless 

they’re limited to the perception of quid pro quo

corruption, given the narrow government interest 

recognized by this court. Citizens United, 558 U.S. at 

360. Much of the data presented by the government 

in McConnell relied on surveys that measured the 

perception of “unfairness” or “influence of special 

interests” in the current government. See generally

Persily & Lammie, supra, at 139–44 (criticizing 

many of the public opinion polls used in McConnell
29

for not being properly focused on quid pro quo

corruption, but rather measuring public perception 

about “influence” or “access”). Such overbroad 

surveys of public opinion cannot be used to justify 

the aggregate limits. The relevant government 

interest is strictly “limited to quid pro quo 

corruption.” Citizens United, 130 S. Ct at 909–10.

In sum, the aggregate limits, as with most 

campaign finance restrictions, have not been 

successful at impacting — let alone substantially 

reducing — the public perception of quid pro quo

corruption. Surveys that purport to demonstrate 

otherwise are often inapplicable because they rely on 

general notions of unfairness rather than the 

appearance of quid pro quo corruption, narrowly 

defined by the Supreme Court.

2. The public’s distrust in the government is 

caused by factors other than campaign 

spending, so the aggregate limits will never 

succeed in reducing the appearance of 

corruption.

As demonstrated above, the aggregate limits do 

not impact the public’s perception of corruption, and 

in fact, the public perception of corruption is 

controlled by a variety of other factors that are 

independent of campaign finance. 

Historically, mistrust in the government has been 

driven by factors unrelated to the financing of 

political campaigns. Factors including the Vietnam 

War and a general increase in public cynicism have 

spurred a decline of trust in the government that has 

continued from the 1950s to today. David M. Primo 

& Jeffrey Milyo, Campaign Finance Laws and 
30

Political Efficacy: Evidence from the States, 5 

Election L. J. 23, 26–27 (2006). In the 1980s, the 

level of distrust grew higher with stagflation and the 

Iran hostage crisis. Id.

More recent studies have likewise shown that 

perceptions of corruption are controlled by a variety 

of factors unrelated to the aggregate limits – for 

example, the popularity of the president, government 

fiscal policy, whether the country is in economic 

growth or recession, and individual factors, such as 

personal views about society. Id. at 121, 173. Taken 

together, these studies cast grave doubt on the claim 

that the government interest in reducing perceptions 

of corruption can be addressed through aggregate 

limits.

The grave doubt is only magnified by the longstanding public belief that campaign finance laws in 

any form will not be successful – for example, at 

decreasing the influence of “special interests.” 

Measures of how people perceive the power of such 

special interest groups are often used to evaluate the 

public’s perception of the government’s 

trustworthiness. See, e.g., Persily & Lammie, supra, 

at 142–43 (discussing the results of Gallup poll that 

focus on the public’s perception of “special interest” 

groups’ influence over the government). For at least 

four years prior to the passage of the BCRA, over 

sixty percent of Americans consistently believed that 

campaign finance regulation would not diminish the 

power of special interests. Rebuttal Declaration of Q. 

Whitfield Ayres, McConnell v. Fed. Election Comm’n, 

251 F. Supp. 2d 176 (2003) (No. 02-874). After the 

passage of the BCRA, this number is essentially 

unchanged. Today, two-thirds of Americans 
31

consistently believe that “special interests” will 

maintain power regardless of campaign finance 

reforms. Id.; Persily & Lammie, supra, at 147. The 

fact that neither BCRA nor FECA has had an impact 

on the perceived power of special interests – a 

measure of the public’s trust in the government –

suggests that campaign finance restrictions, 

including aggregate limits, cannot decrease distrust 

of the government generally, no less that component 

of distrust flowing from the perception of corruption. 

Moreover, upticks in the public perceptions of 

corruption may actually be due to the prominence of 

stricter campaign finance regulations in the public 

debate. See Beth Ann Rosenson, The Effect of 

Political Reform Measures on Perception of 

Corruption, 8 Election L.J. 31 (2009). Stricter 

campaign finance laws typically result in an increase 

in alleged campaign finance violations or 

investigations thereof, both of which tend to increase 

the public’s perception of corruption. Id. at 40. Data 

actually points to an increase in perceptions of 

corruption where campaign finance laws are more 

restrictive. Even the most informed and 

knowledgeable citizens perceive greater corruption 

where campaign finance laws are more restrictive. Id.

at 42–43. In a study based on the perceptions of 

corruption in state governments, campaign finance 

regulation resulted in a higher public perception of 

corruption. Id. at 40. 

The possibility that campaign finance restrictions, 

including the aggregate limits, may actually be 

increasing the perception of corruption is sobering. 

These restrictions may be the ultimate “vicious 

cycle”: public trust in government drops due to 
32

political events; the government imposes new base 

and aggregate limits to address the drop; however, 

the new focus on campaign finance and increased 

reports of violations causes an increase in the public 

perception of corruption; the public perception of 

corruption justifies the imposition of stricter 

contribution limits; ad infinitum. 

In conclusion, the aggregate limits cannot be 

justified by the government’s interest in preventing 

the perception of corruption. Empirical data 

demonstrates that the aggregate limits have been 

ineffective at improving public trust of the 

government, largely because trust in the government 

is controlled by other factors. This evidence casts 

grave doubts on the government’s theory that it can 

prevent the perception of corruption by restricting 

individuals’ aggregate donations. Cf. Nixon v. Shrink 

Missouri Gov’t PAC, 528 U.S. 377, 394–95 (2000)

(noting that if “doubt [was cast] on the apparent 

implications of Buckley’s evidence, then that may 

require the government to provide more extensive 

evidentiary documentation”).
33

CONCLUSION

For the foregoing reasons, the judgment of the 

district court should be reversed.

Respectfully submitted,

CURT A. LEVEY

The Committee for Justice 

722 12th Street, N.W.,

4th Floor 

Washington, DC 20005

(202) 270-7748 

contact@

committeeforjustice.org

SARAH M. SHALF

Counsel of Record

Emory Law School 

Supreme Court 

Advocacy Project

1301 Clifton Road

Atlanta, Georgia 30321

(404) 712-4652

sarah.shalf@emory.edu