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No. 02-1740 

================================================================ 

In The 

Supreme Court of the United States ----♦-- -

VICTORIA JACKSON GRAY ADAMS, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The United States District Court, 

District Of Columbia 

----♦-- -

APPELLANTS’ REPLY BRIEF 

----♦-- -

JOHN C. BONIFAZ 

Counsel of Record 

BONITA TENNERIELLO 

LISA J. DANETZ 

BRENDA WRIGHT 

NATIONAL VOTING RIGHTS 

INSTITUTE 

27 School Street 

Suite 500 

Boston, MA 02108 

(617) 624-3900 

DAVID A. WILSON


HALE AND DORR LLP 


1455 Pennsylvania Avenue, NW, 


10th Floor 

Washington, DC 20004 

(202) 942-8400 

Attorneys for Appellants 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS


Page 


INTRODUCTION ....................................................... 1 


I.	 THE ADAMS APPELLANTS HAVE STAND­


ING TO CHALLENGE THE INCREASED 


HARD MONEY CONTRIBUTION LIMITS 


OF BCRA ......................................................... 2 


A.	 Candidate Appellant Cynthia Brown,


Among The Adams Appellants, Has


Competitor Standing ................................ 3 


B.	 The Voter Appellants And Candidate


Appellant Cynthia Brown Have Standing 


Based On Their Exclusion From The 


Electoral Process....................................... 5 


C. 	 The Appellants’ Injury Is “Fairly Trace-


able” To The Challenged Provisions......... 8 


D. 	A Favorable Decision Will Redress The 


Appellants’ Injury ..................................... 9 


II. BCRA’S HARD MONEY LIMIT INCREASES 


VIOLATE THE CONSTITUTIONAL GUAR­


ANTEE OF EQUAL PROTECTION FOR 


ALL .................................................................. 10 


CONCLUSION............................................................ 16 

ii 

TABLE OF AUTHORITIES 

Page 

CASES 

Anderson, et al. v. Celebrezze, 460 U.S. 780 (1983) ............ 5 


Baker v. Carr, 369 U.S. 186 (1962)................................ 5, 14 


Becker v. FEC, 230 F.3d 381 (1st Cir. 2000) ....................... 4 


Buchanan v. FEC, 112 F.Supp.2d 58 (D.D.C. 2000)....... 4, 5 


Buckley v. Valeo, 424 U.S. 1 (1976) ................................... 14 


Bullock v. Carter, 405 U.S. 134 (1972) .............. 5, 10, 11, 12


Conlon v. Adamski, 77 F.2d 397 (D.C. Cir. 1935)............... 9 


Davis v. Bandemer, 478 U.S. 109 (1986)............................. 6 


Federal Election Comm’n v. Colorado Republican 


Federal Campaign Comm., 533 U.S. 431 (2001)........... 12 


Fulani v. Brady, 953 F.2d 1324 (D.C. Cir. 1991)................ 4 


Fulani v. League of Women Voters Educ. Fund, 882 


F.2d 621 (2d Cir. 1989)..................................................... 4 


Gray v. Sanders, 372 U.S. 368 (1963) ................................. 5 


Harper v. Virginia Board of Elections, 383 U.S. 663 


(1966) ........................................................................ 10, 11 


Int’l Assn. of Machinists v. FEC, 678 F.2d 1092


(D.C. Cir. 1982)................................................................. 6 


Lubin v. Panish, 415 U.S. 709 (1974)............................ 5, 10 


Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)........... 2 


M.L.B. v. S.L.J., 519 U.S. 102 (1996)................................ 10 


Nixon v. Shrink Missouri Government PAC, 528 


U.S. 377 (2000) ........................................................... 9, 15 


Reynolds v. Sims, 377 U.S. 533 (1964)........................ 5, 6, 9 

iii 

TABLE OF AUTHORITIES – Continued 

Page 

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 

1993).............................................................................. 4, 5 

Wesberry v. Sanders, 376 U.S. 1 (1963)............................... 5 

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .......................... 15 

STATUTES 

Federal Election Campaign Act of 1971, 2 U.S.C. 

§ 431 et seq. ................................................................. 9, 16 

OTHER AUTHORITIES 

Anatole France, Le Lys Rouge (Calmann-Laevy, 

1894).................................................................................. 1 

Center for Responsive Politics, “John R. Edwards: 

Politician Profile,” available at http://www.open 

secrets.org/1998os/index/N00002283.htm.................... 7-8 

Jim Morrill, Law May Level Political Funding Field, 

Charlotte Observer, June 24, 2003, available at 

http://www.charlotte.com/mld/observer/news/6156 

128.htm ............................................................................. 8 
1 

INTRODUCTION 

The appellees argue that the Adams appellants’ 

claims lack merit principally because, under BCRA’s hard 

money increases, the Adams appellants are free to choose 

not to give or accept contributions up to $2,000 per individual or up to $12,000 per individual in races involving 

self-funded opponents.1

 That “freedom” argument is 

divorced from reality, misconstrues the appellants’ claims, 

and ignores Supreme Court precedent prohibiting wealth 

discrimination in the electoral process. The illusory 

“freedom” posited by the appellees is no more relevant to 

the BCRA’s hard money increases than to electoral barriers such as the poll tax and candidate filing fees that have 

been struck down by this Court. BCRA’s hard money 

increases can hardly be deemed to bestow any meaningful 

freedoms on non-wealthy voters and candidates. Rather, 

they make access to personal wealth and affluent backers 

a pre-requisite for electoral participation, in violation of 

the constitutional guarantee of equal protection for all. 

The Adams appellants, as potential candidates for 

federal office and as voters, have standing to challenge 

their exclusion from the electoral process as caused by 

BCRA’s hard money increases. More than four decades of 

federal case law make clear that the Adams appellants have 

the right to challenge electoral barriers which exclude them 

1 The appellees’ claim recalls Anatole France’s observation that the 

“law, in its majestic equality, forbids the rich, as well as the poor, to 

sleep under the bridges, to beg in the streets, and to steal bread.” 

Anatole France, LE LYS ROUGE, (Calmann-Laevy, 1894). Non-wealthy 

voters obviously do not have the luxury of deciding whether to make 

large campaign contributions. 
2 

based on their economic status and that BCRA’s hard 

money increases violate their equal protection rights. 

I.	 THE ADAMS APPELLANTS HAVE STANDING 

TO CHALLENGE THE INCREASED HARD 

MONEY CONTRIBUTION LIMITS OF BCRA. 

In order to have standing, a litigant must have suffered a concrete and particularized injury in fact, which is 

fairly traceable to the defendant’s conduct and will be 

redressed by a favorable decision. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). The appellants in 

this case present such an injury. The record demonstrates 

that candidate appellant Cynthia Brown has standing 

because the BCRA hard money increases will, in every 

practical sense, make meaningful competition for federal 

office impossible for her and other candidates lacking 

access to wealth. The hard money increases will multiply 

the advantages enjoyed by candidates with access to 

networks of large donors,2

 and will thereby diminish or 

eradicate the prospects of candidates lacking such access.3 

2 See Adams Exh. 1, Declaration and Expert Report of Derek 

Cressman, (hereinafter “Cressman Decl.”), J.S. App. 21a-29a; Adams 

Exh. 2, Declaration and Expert Report of Prof. John C. Green, ¶4 

(hereinafter “Green Decl.”), J.S. App. 30a-44a; Adams Exh. 3, Declaration and Expert Report of Craig McDonald, (hereinafter “McDonald 

Decl.”), J.S. App. 45a-54a. 

3 See Adams Exh. 22, Declaration of Cynthia Brown (hereinafter 

“Brown Decl.”), J.S. App. 93a-95a. As documented by expert witness 

Derek Cressman, fundraising nearly always determines success. 

Candidates with a substantial financial advantage won 94 percent of 

the time in the 2000 elections, Cressman Decl. ¶ 2, J.S. App. 22a, and 

maximum contributions made up 60 percent of individual donations to 

those winners. Id. ¶ 5, J.S. App. 23a. Candidates lacking access to large 

(Continued on following page) 
3 

The voter appellants have standing because the BCRA 

hard money increases will exclude them from the electoral 

process based on their economic status and will deny 

voter-supporters, such as appellant Carrie Bolton,4 

an 

equal opportunity to elect the candidates of their choice. 

See Adams appellants’ opening brief at 2-13. 

A. 	Candidate Appellant Cynthia Brown, 

Among The Adams Appellants, Has Competitor Standing. 

In denying that appellants have suffered cognizable 

harm, the appellees ignore case law explicitly recognizing 

competitive electoral injury as a justiciable claim. “[I]t is 

well-settled that an economic actor may challenge the 

government’s bestowal of an economic benefit on a competitor. . . . Courts within this Circuit and elsewhere have 

expanded the competitor standing doctrine to the political 

networks of maximum donors have testified that, under BCRA’s hard 

money increases, they will be deterred from seeking federal office. See 

also Adams Exh. 19, Declaration of Dr. Thomas A. Caiazzo, J.S. App. 

79a-82a; Adams Exh. 20, Declaration of Gail Crook, J.S. App. 83a-87a; 

Adams Exh. 21, Declaration of Victor Morales, J.S. App. 88a-92a; 

Adams Exh. 23, Declaration of Ted Glick (hereinafter “Glick Decl.”), J.S. 

App. 96a-99a. 

4 See Adams Exh. 25, Declaration of Carrie Bolton (hereinafter 

“Bolton Decl.”), J.S. App. 103a-106a; Adams Exh. 24, Declaration of 

Victoria Jackson Gray Adams, J.S. App. 100a-102a; Adams Exh. 26, 

Declaration of Daryl Irland, J.S. App. 107a-109a; Adams Exh. 27, 

Declaration of Anuradha Joshi, J.S. App. 110a-112a; Adams Exh. 28, 

Declaration of Howard Lipoff, J.S. App. 113a-115a; Adams Exh. 29, 

Declaration of Nancy Russell, J.S. App. 116a-118a; Adams Exh. 31, 

Declaration of Kate Seely-Kirk, J.S. App. 127a-129a; Adams Exh. 32, 

Declaration of Stephanie L. Wilson, J.S. App. 130a-132a; Adams Exh. 

30, Declaration of Chris Saffert, J.S. App. 119a-126a. 
4 

arena, recognizing that political actors may bring suit 

when they are competitively disadvantaged by government 

action.” Buchanan v. FEC, 112 F.Supp.2d 58, 63 (D.D.C. 

2000) (internal citations omitted). To deny cognizable 

injury from a candidate’s loss of competitive advantage 

“would tend to diminish the import of depriving a serious 

candidate for public office of the opportunity to compete 

equally for votes in an election.” Fulani v. League of 

Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir. 1989) 

(“Fulani I”); cf. Fulani v. Brady, 953 F.2d 1324, 1327 (D.C. 

Cir. 1991) (“Fulani II”).5 See also Becker v. FEC, 230 F.3d 

381, 386 (1st Cir. 2000) (candidate had standing to challenge FEC regulations disadvantaging his campaign); Vote 

Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993) 

(candidate had standing to challenge campaign finance 

law that placed her campaign at a competitive disadvantage). The Court in Becker warned against second-guessing 

“a candidate’s reasonable assessment of his own campaign,” 

which “would require the clairvoyance of campaign consultants or political pundits – guises that members of the apolitical branch should be especially hesitant to assume.” Becker, 

230 F.3d at 387. Thus, an injury to a candidate’s competitive 

advantage – such as that suffered by candidate appellant 

Cynthia Brown – provides the concrete, direct, and personal 

stake necessary to confer standing. The three-judge 

5 The Court in Fulani II noted that “[u]nquestionably, there is such 

a concept as ‘competitor standing,’ ” 953 F.2d at 1327, but denied 

standing because plaintiff sued under the Internal Revenue Code and 

plaintiff’s injuries were not fairly traceable to the tax status of the 

debate sponsor. The Buchanan decision notes that in Fulani II “the fact 

that the plaintiffs did not sue under FECA, but rather under the 

Internal Revenue Code, proved dispositive . . . . The FECA, unlike the 

Internal Revenue Code, confers a broad grant of standing.” See Buchanan, 112 F.Supp.2d at 63. 
5 

district court below acknowledged as much in its Order of 

May 3, 2002, which granted the Motion to Intervene of the 

Defendant-Intervenors. See Order of May 3, 2002, at 7, 

(citing Buchanan, 112 F.Supp.2d at 65; Vote Choice, 4 F.3d 

at 37), Appendix to Madison Center Plaintiffs-Appellants’ 

Reply Brief, 6a-7a. 

B.	 The Voter Appellants And Candidate Appellant Cynthia Brown Have Standing 

Based On Their Exclusion From The Electoral Process. 

The appellants’ injury – exclusion from the electoral 

process based on economic status – is precisely the injury 

that voters and candidates claimed in the cases successfully challenging mandatory candidate filing fees. See 

Bullock v. Carter, 405 U.S. 134 (1972); Lubin v. Panish, 

415 U.S. 709 (1974). The Supreme Court held that candidates “lacking both personal wealth and affluent backers” 

were “in every practical sense” excluded from the electoral 

process by filing fees. Bullock, 405 U.S. at 143-144. This 

Court has declared that the rights of candidates are 

“intertwined with the rights of voters.” Lubin, 415 U.S. at 

716; see also Anderson, et al. v. Celebrezze, 460 U.S. 780, 

786-787 (1983). 

The standing of voters to challenge exclusionary 

electoral barriers is further affirmed by Baker v. Carr, 369 

U.S. 186 (1962), and successor cases granting standing to 

voters who suffer a debasement of their vote due to legislative apportionment. See Reynolds v. Sims, 377 U.S. 533 

(1964); Wesberry v. Sanders, 376 U.S. 1 (1963); Gray v. 

Sanders, 372 U.S. 368 (1963). Like the plaintiffs in those 

cases, appellants here are free to vote and to seek office, 

but their “influence on the political process as a whole” is 
6 

impaired. Davis v. Bandemer, 478 U.S. 109, 132 (1986). 

This is so because the Adams appellants cannot participate in any meaningful way under hard money ceilings 

that are so far out of their reach. Under BCRA’s hard 

money increases, the voters among the Adams appellants 

simply can no longer make contributions at a level that 

ensures them an equal opportunity to elect the candidates 

of their choice. Even if candidate appellant Cynthia Brown 

were to collect contributions from thousands more supporters than her well-financed opponents, she could not 

hope to collect enough campaign dollars to approach the 

size of the war chests, under BCRA’s hard money increases, of candidates with access to large networks of 

wealthy donors. “The right of suffrage can be denied by a 

debasement or dilution of the weight of a citizen’s vote just 

as effectively as by wholly prohibiting the free exercise of 

the franchise.” Reynolds, 377 U.S. at 555; see also Int’l 

Assn. of Machinists v. FEC, 678 F.2d 1092, 1098 (D.C. Cir. 

1982) (finding standing for voters who alleged “a relative 

diminution in their political voices – their influence in 

federal elections” due to a financial disadvantage conferred on their preferred candidates by the Federal Election Campaign Act). 

With regard to the Adams appellants’ challenge to 

BCRA §§ 304 and 319 (collectively referred to as the 

“millionaire provisions”), the appellees ignore the concrete 

and particularized injury in fact suffered by appellant 

Cynthia Brown and her voter-supporter, appellant Carrie 

Bolton. Appellant Brown has testified that she was a 

candidate for the United States Senate from North Carolina in the 2002 Democratic Primary, Brown Decl. ¶ 3, J.S. 

App. 94a; that one of her opponents was a millionaire who 

“contributed enormous sums of money to his own campaign,” id. ¶ 5, J.S. App. 94a; that another opponent 
7 

“raised large sums of money from wealthy contributors,” 

id.; that her own contributions averaged approximately 

$25, id. ¶ 4, J.S. App. 94a; and that she would consider 

running again for the U.S. Senate, but the BCRA millionaire provisions would “seriously discourage” her from 

participating. Id. ¶ 7, J.S. App. 94a-95a. 

If I were to run for the U.S. Senate again from 

North Carolina, I would likely face again a millionaire opponent. Under the increases in the 

hard money contribution limits, my other opponents would be free to raise up to $12,000 per individual per election. The people I know can 

hardly afford to contribute twenty-five dollars, 

let alone $12,000. There is no way that any candidate like me can compete under these new conditions. These increases in the hard money 

contribution limits would effectively eliminate 

any future campaign I might hope to wage for 

the U.S. Senate. 

Id. ¶ 8-9, J.S. App. 95a.6 

Appellant Brown and the other appellants filed this 

lawsuit during the 2002 election cycle. If Ms. Brown were 

to run for Senate in North Carolina in 2004, she likely 

would be in a race where the millionaire amendment 

provisions apply. Incumbent Senator John Edwards spent 

$6.15 million of his own money to win election in 1998, see 

Center for Responsive Politics, “John R. Edwards: Politician Profile,” available at http://www.opensecrets.org/1998os/ 

6 Appellant Bolton, a North Carolina voter supporting Ms. Brown, 

also testified regarding her desire to support Ms. Brown in future 

elections. Bolton Decl., J.S. App. 103a-106a. 
8 

index/N00002283.htm, and he will face re-election in 2004. 

Further, North Carolina press accounts have already 

noted that the millionaire provisions will likely be triggered even if Edwards does not run, since, in that event, 

Charlotte investment banker Erskine Bowles – who spent 

$6.8 million in his 2002 Senate bid – reportedly plans to 

enter the race. See Jim Morrill, Law May Level Political 

Funding Field, Charlotte Observer, June 24, 2003, available 

at http:/www.charlotte.com/mld/observer/news/6156128. 

htm. Another entrant in the primary, U.S. Rep. Richard 

Burr, has reportedly begun fundraising and would take 

advantage of the higher contribution limits if the millionaire amendment were triggered. See id. 

The exclusion of appellant Brown and the voter 

appellants from the electoral process constitutes a concrete and particularized injury in fact. 

C. The Appellants’ Injury Is “Fairly Traceable” To The Challenged Provisions. 

The appellants’ injury is “fairly traceable” to the 

BCRA hard money increases. By enacting the increases, 

Congress enabled candidates with access to vast networks 

of wealthy donors to dominate the electoral process, 

denying candidates lacking access to wealth – such as 

candidate appellant Cynthia Brown – any meaningful 

opportunity to run for federal office. Further, by enacting 

the increases, Congress prevented voters lacking access to 

wealth – such as the voter appellants – from having an 

equal opportunity to elect the candidates of their choice. 
9 

Congress may not raise contribution limits to a level 

that effectively excludes voters and candidates based on 

their economic status and that debases and dilutes the 

fundamental right to vote. With the BCRA hard money 

increases, Congress has created two distinct classes of 

voters: those who, as a result of the increases, can employ 

vast networks of wealthy donors in support of the candidates of their choice and those who cannot. The Constitution prohibits the State from unlawfully weighting a 

citizen’s vote in this way. See Reynolds, 377 U.S. at 565 

(The Constitution requires “that each citizen have an 

equally effective voice. . . . ”) See also Nixon v. Shrink 

Missouri Government PAC, 528 U.S. 377, 401 (2000) 

(Breyer, J., joined by Ginsburg, J., concurring) (citing 

Reynolds, 377 U.S. at 565). 

D.	 A Favorable Decision Will Redress The 

Appellants’ Injury. 

Finally, the appellants’ injury will be redressed by a 

favorable decision. An invalidation of the BCRA increases 

would return the hard money limits to the levels established by the Federal Election Campaign Act (“FECA”) 

before BCRA’s enactment. See Conlon v. Adamski, 77 F.2d 

397, 399 (D.C. Cir. 1935) (“[A] void act cannot operate to 

repeal a valid existing statute. . . .”). As discussed in 

Section I:A of the appellants’ opening brief, a constitutional violation may arise when existing disparities reach 

a level that causes injury of constitutional magnitude. 

Disparities of influence certainly existed under the previous FECA limits. The BCRA increases, however, impose 

insurmountable obstacles to the voter and candidate 

appellants’ effective exercise of their basic rights to participate in the political process. 
10 


II.	 BCRA’S HARD MONEY LIMIT INCREASES 

VIOLATE THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION FOR ALL. 

As demonstrated by the Adams appellants’ opening 

brief, BCRA’s hard money increases violate the equal 

protection rights of non-wealthy voters and candidates, 

such as the Adams appellants. The appellees’ responsive 

brief fails to address longstanding Supreme Court precedent prohibiting wealth discrimination in the electoral 

process. In its landmark ruling, Harper v. Virginia Board 

of Elections, 383 U.S. 663, 666 (1966), the Court struck 

down the poll tax on equal protection grounds, finding that 

“[v]oter qualifications have no relation to wealth.” In 

Bullock v. Carter, 405 U.S. 134 (1972), the Court struck 

down mandatory candidate filing fees, stating: “We would 

ignore reality were we not to recognize that this system 

falls with unequal weight on voters, as well as candidates, 

according to their economic status.” Id. at 144; see also 

Lubin v. Panish, 415 U.S. 709 (1974); M.L.B. v. S.L.J., 519 

U.S. 102, 124 (1996) (“The basic right to participate in 

political processes as voters and candidates cannot be 

limited to those who can pay for a license.”). 

The appellees attempt to sweep aside this precedent 

with the Orwellian assertion that the appellants “have the 

same opportunity as any other donors and candidates to 

make and receive contributions in the increased amounts.” 

Brief for the Federal Election Commission, et al. at 128.7 

Under that reasoning, the Harper plaintiffs had the same 

7 See also Brief for the Federal Election Commission, et al. at 126 

(appellants “themselves can now make and receive contributions up to 

the new $2,000 limit . . . ”). 
11 

opportunity to pay the $1.50 poll tax in Virginia’s state 

elections, and the Bullock plaintiffs had the same opportunity to pay the candidate filing fees in Texas’ primary 

elections. The Court in Bullock, in fact, rejected this 

precise argument, finding that the candidates were “unable, not simply unwilling, to pay the assessed fees. . . . ” 

Bullock, 405 U.S. at 146. 

There is no substantive difference between the economic barriers to the political process imposed by the 

State in Harper and Bullock and the economic barrier 

imposed by BCRA’s hard money increases. In Bullock, this 

Court acknowledged that “[t]he problem presented by 

candidate filing fees is not the same” as that presented by 

the poll tax in Harper. Id. at 142. 

Texas does not place a condition on the exercise 

of the right to vote, nor does it quantitatively dilute votes that have been cast. Rather, the Texas 

system creates barriers to candidate access to the 

primary ballot, thereby tending to limit the field of 

candidates from which voters might choose. . . . In 

approaching candidate restrictions, it is essential 

to examine in a realistic light the extent and nature of their impact on voters. 

Id. at 143 (internal citations omitted). In reviewing the 

Texas system, this Court concluded: 

Many potential office seekers lacking both personal wealth and affluent backers are in every 

practical sense precluded from seeking the nomination of their chosen party, no matter how 

qualified they might be, and no matter how 

broad or enthusiastic their popular support. The 

effect of this exclusionary mechanism on voters is 

neither incidental nor remote. 
12 

Id. at 143-144. Thus, although the problems were not the 

same, the candidate filing fees in Bullock represented a 

distinction without a difference from the poll tax in 

Harper. 

As with the candidate filing fees in Bullock, under 

BCRA’s hard money increases, appellants and other 

potential office seekers who “lack[ ] both personal wealth 

and affluent backers are in every practical sense precluded” from running for federal office. This Court “would 

ignore reality were [it] not to recognize that [the BCRA 

hard money increases] fall[ ] with unequal weight on 

voters, as well as candidates, according to their economic 

status.” Id. at 144; see also Federal Election Comm’n v. 

Colorado Republican Federal Campaign Comm., 533 U.S. 

431, 462 (2001) (evaluating the impact of campaign finance law in the context of “actual political conditions”). 

Appellant Cynthia Brown has run for the U.S. Senate 

from North Carolina in a race involving a self-funded 

candidate and other opponents supported by affluent 

backers, and she is considering running again for the U.S. 

Senate in 2004, facing similar circumstances. Under 

BCRA’s hard money increases, candidates like appellant 

Brown will find it impossible to compete, because they are 

“unable, not simply unwilling,” Bullock, 405 U.S. at 146, to 

gather contributions of up to $2,000 from wealthy donors 

or, under BCRA’s millionaire provisions, up to $12,000 

from such donors. See Brown Decl., ¶¶ 8-9, J.S. App. 95a; 

see also Glick Decl., ¶6, J.S. App. 98a (“It is impossible to 

participate facing that tremendous disparity in resources. 

I just do not run in the circles of people who can contribute 

$12,000.”). 
13 


Similarly, it is ludicrous to argue that votersupporters of candidates such as appellant Brown have 

the same opportunity as other donors to make contributions in the increased amounts. As appellant Bolton 

testified: Under BCRA’s millionaire provisions, “I would 

not even get on the scale with those making significant 

contributions.” Bolton Decl., ¶11, J.S. App. 105a. 

Cynthia Brown is like most of us. She is not connected to people who have that kind of money. I 

could put up all the signs I wanted in that kind 

of future race, but I would never be able to get 

my voice heard. It would be like fighting a fire 

with a cup of water. 

The increases in the hard money contribution 

limits make it no longer conceivable that I can 

access the political process. They undermine the 

meaning and value of my vote. 

Id., ¶¶11-12, J.S. App. 105a-106a. 

As demonstrated by the Adams appellants’ opening 

brief, BCRA’s hard money increases will deprive nonwealthy voters of the ability to support meaningfully the 

candidates of their choice and will violate the right to vote 

as concretely as previous wealth barriers. The hard money 

increases will make access to “personal wealth and affluent backers” a prerequisite for electoral participation as 

surely as any filing fee and will allow such affluent backers to achieve a stranglehold on the electoral process. Even 

Defendant-Intervenor Senator Russ Feingold, the cosponsor of BCRA, concedes that BCRA’s hard money 

increases will likely further enable certain candidates to 

build up campaign war chests, “potentially discourag[ing] 

some people from running” for federal office. Deposition of 

Senator Russ Feingold, September 9, 2002, 264, line 14 to 
14 

265, line 3 (hereinafter “Feingold Deposition”), Jt. App. at 

858. Defendant-Intervenor Feingold has also admitted 

that the hard money increases will benefit incumbent 

candidates facing candidates without access to wealth. 

Feingold Deposition, 260, lines 7-8, Jt. App. at 857.8

 Thus, 

BCRA’s hard money increases will serve to entrench 

incumbents in power, thereby creating an “entrenched 

political regime[ ],” Baker v. Carr, 369 U.S. 186, 248 (1962) 

(Douglas, J., concurring), which locks out voters and 

candidates, like appellants, who lack access to wealth. 

A statute that increases campaign contribution limits 

should be assessed for its impact on the equal protection 

rights of voters and candidates lacking access to wealth. 

Just as this Court may find that a contribution limit is 

justified to prevent corruption and the appearance of 

corruption – as this Court did in Buckley v. Valeo, 424 U.S. 

1 (1976), this Court may also find that an increased 

contribution limit discriminates against voters and candidates according to their economic status. 

The appellees turn a statement in the Court’s ruling 

in Buckley on its head in an attempt to find justification 

for the hard money increases. Brief for the Federal Election Commission, et al. at 127. The Buckley Court stated 

that “a court has no scalpel to probe, whether, say, a 

$2,000 ceiling might not serve as well as $1,000,” Buckley, 

424 U.S. at 30, in the context of its holding that the 

8 The factual record in this case demonstrates that the primary 

beneficiaries of the increases will be the very incumbents who enacted 

them. See Adams appellants’ opening brief at 10-11; Cressman Decl., 

¶19, J.S. App. 29a; Adams Exh. 4, Declaration and Expert Report of 

Professor Thomas Stratmann, ¶¶5-12, J.S. App. 57a-60a. 
----------------------------- ------------------------------

15 

individual $1,000 contribution limit was justified to 

prevent corruption and the appearance of corruption. The 

reliance on that statement here – involving contribution 

limit increases that do not address corruption but rather 

serve to entrench those in power – is entirely misplaced. 

In fact, BCRA’s hard money increases will have precisely 

the effect the Court in Nixon v. Shrink held would be 

constitutionally impermissible. See Nixon v. Shrink, 528 

U.S. at 397 (contribution limits are permissible unless 

they are “so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice 

beneath the level of notice, and render contributions 

pointless.”). Thus, while the Constitution may prohibit 

some contribution limits because they are too low, it may 

also prohibit some limits because they are too high. Under 

BCRA’s hard money increases, vast infusions of cash will 

drown out the voices of non-wealthy candidates, making 

the association of their supporters ineffective and rendering small contributions pointless. 

BCRA’s hard money increases debase and dilute 

appellants’ right to vote, “a fundamental political right . . . 

preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 

356, 370 (1886). As such, these increases offend core equal 

protection principles that serve as the foundation of our 

constitutional democracy. This Court has a duty to uphold 

those principles and to prevent the imposition of this new 

economic barrier in the political process. 

----♦-- -
16 

CONCLUSION 

For the foregoing reasons, the Court should reverse 

the decision of the district court; declare that sections 304, 

307, and 319 of BCRA, codified in 2 U.S.C. § 431 et seq., 

violate the equal protection guarantee incorporated by the 

Due Process Clause of the Fifth Amendment to the United 

States Constitution; and remand the case to the district 

court with instructions to enter a permanent injunction 

restraining the appellees from enforcing or otherwise 

applying sections 304, 307, and 319 of BCRA and ordering 

the appellees to enforce the provisions of the Federal 

Election Campaign Act of 1971, 2 U.S.C. § 431 et seq., that 

were amended by sections 304, 307, and 319 of BCRA as 

such provisions existed prior to the enactment of BCRA. In 

the alternative, the Court should reverse the district 

court’s ruling of nonjusticiability and remand the case for 

consideration on the merits. 

DAVID A. WILSON


HALE AND DORR LLP 


1455 Pennsylvania Avenue, 


NW, 10th Floor 

Washington, DC 20004 

(202) 942-8400 

Respectfully submitted, 

JOHN C. BONIFAZ 

Counsel of Record 

BONITA TENNERIELLO 

LISA J. DANETZ 

BRENDA WRIGHT 

NATIONAL VOTING RIGHTS 

INSTITUTE 

27 School Street 

Suite 500 

Boston, MA 02108 

(617) 624-3900 

Attorneys for Appellants 

August 21, 2003