No. 12-536 

In the Supreme Court of the United States

SHAUN MCCUTCHEON, ET AL., APPELLANTS

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MOTION TO DISMISS OR AFFIRM 

ANTHONY HERMAN

General Counsel 

LISA J. STEVENSON

Deputy General Counsel 

DAVID KOLKER

Associate General Counsel 

ADAV NOTI

Acting Assistant General 

Counsel 

Federal Election Commission

 Washington, D.C. 20453 

DONALD B. VERRILLI, JR. Solicitor General 

Counsel of Record 

Department of Justice 

Washington, D.C. 20530-0001 

SupremeCtBriefs@usdoj.gov 

(202) 514-2217 

 
(I) 

QUESTION PRESENTED 

Whether the three-judge district court correctly rejected appellants’ constitutional challenge to federal 

statutory limits on the aggregate amounts that an individual may contribute to federal candidates, political 

parties, and other political committees, 2 U.S.C. 

441a(a)(3). 
(III) 

TABLE OF CONTENTS

Page

Opinion below .................................................................................. 1 

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

Statement ......................................................................................... 1 

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

Conclusion ...................................................................................... 26 

TABLE OF AUTHORITIES 

Cases: 

Arizona Free Enter. Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806 (2011) ....................................... 5, 10 

Buckley v. Valeo: 

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

519 F.2d 821 (D.C. Cir. 1975) .............................................. 3

California Med. Ass’n v. FEC, 453 U.S. 182 (1981) ....... 5, 14 

Davis v. FEC, 554 U.S. 724 (2008) ........................................ 21

FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001) ............................. 6, 7, 17, 18, 19 

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

(2007) ................................................................................ 15, 16

McConnell v. FEC, 540 U.S. 93 (2003), overruled in 

part by Citizens United v. FEC, 130 S. Ct. 876 

(2010) ............................................................................. passim 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000) ................................................................ 7, 10, 16, 22, 23 

Randall v. Sorrell, 548 U.S. 230 (2006) ................ 7, 21, 23, 24 

Statutes and regulation:

Bipartisan Campaign Reform Act of 2002, Pub. L. 

No. 107-155, 116 Stat. 113-114 .............................................. 4 

Federal Election Campaign Act of 1971, 2 U.S.C. 431 

et seq. ........................................................................................ 1 
IV 

Statutes and regulation—Continued: Page

2 U.S.C. 431(8)(A)(i) ............................................................. 2 

2 U.S.C. 431(8)(B)............................................................... 24 

2 U.S.C. 441(a)(1)(A)-(D) ..................................................... 2 

2 U.S.C. 441(a)(1)(B)-(D) .................................................. 11 

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

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

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

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

2 U.S.C. 441a(a)(4) ............................................................. 14 

2 U.S.C. 441a(a)(8) ............................................................. 17 

2 U.S.C. 441a(c) .................................................................. 24 

11 C.F.R. 100.2 ........................................................................... 2 

Miscellaneous: 

EMILY’s List, Our Races, http://www.emilyslist. 

org/what/races (last visited Dec. 28, 2012) ........................ 12 

120 Cong. Rec. 27,224 (1974) .................................................... 2 

FEC: 

Detailed Files About Candidates, Parties and 

Other Committees, http://www.fec.gov/finance/ 

disclosure/ftpdet.shtml (last visited Dec. 28, 2012) ...... 20 

Disclosure Data Catalog, http://www.fec.gov/data/ 

DataCatalog.do?cf=downloadable 

(last visited Dec. 28, 2012) ................................................ 20 

PAC Count—1974 to Present, http://www.fec.gov/ 

press/summaries/2011/2011paccount.shtml 

(last visited Dec. 28, 2012) ................................................ 12

2011-2012 Election Cycle: Total Disbursements by 

Entity Type, http://www.fec.gov/law/ 

2012TDbyEntity.shtml (last visited Dec. 28, 2012) ...... 24 
V 

Miscellaneous—Continued: Page

Press Release, NARAL Pro-Choice America, 

NARAL Pro-Choice America PAC Announces 

New Endorsements in Key House, Senate Contests 

To End War on Women (Apr. 3, 2012), http://www. 

prochoiceamerica.org/elections/elections-pressreleases/2012/pr04032012_pac-endorsements.html ......... 12

Price Index Adjustments for Contribution and 

Expenditure Limits and Lobbyist Bundling Disclosure Threshold, 76 Fed. Reg. (Feb. 14, 2011): 

pp. 8369-8370 ........................................................................ 2 

p. 8370 ................................................................................... 3

 
(1) 

In the Supreme Court of the United States

No. 12-536 

SHAUN MCCUTCHEON, ET AL., APPELLANTS

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MOTION TO DISMISS OR AFFIRM 

OPINION BELOW 

The opinion of the three-judge district court granting 

the government’s motion to dismiss (J.S. App. 1a-17a) is 

not yet published in the Federal Supplement but is 

available at 2012 WL 4466482. 

JURISDICTION 

The judgment of the three-judge district court was 

entered on September 28, 2012. A notice of appeal was 

filed on October 9, 2012, and the jurisdictional statement 

was filed on October 26, 2012. The jurisdiction of this 

Court is invoked under Section 403(a)(3) of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

116 Stat. 113-114. 

STATEMENT 

1. The Federal Election Campaign Act of 1971 

(FECA), 2 U.S.C. 431 et seq., places two types of limits 

on the amounts of money that an individual can contrib-
2 

ute in connection with a federal election. First, FECA 

imposes base limits on the amounts that an individual 

can contribute to any one candidate, political party, or 

non-party political committee. 2 U.S.C. 441a(a); see 2 

U.S.C. 431(8)(A)(i) (definition of “contribution”). As inflation-adjusted for the 2011-2012 election cycle, FECA 

permitted an individual to contribute up to $2500 per 

election (counting primary and general elections separately) to “any candidate and his authorized political 

committees”; up to $30,800 per year to “the political 

committees established and maintained by a national political party”; up to $10,000 per year “to a political committee established and maintained by a State committee 

of a political party”; and up to $5000 per year “to any 

other political committee.” 2 U.S.C. 441a(a)(1)(A)-(D); 

see Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist Bundling Disclosure 

Threshold, 76 Fed. Reg. 8368, 8369-8370 (Feb. 14, 2011); 

see also 11 C.F.R. 100.2 (definition of “election”). 

Second, FECA imposes aggregate limits on the total 

amounts that an individual can contribute to all federal 

candidates and political committees during a two-year 

election cycle. 2 U.S.C. 441a(a)(3). The aggregate limits 

serve to “curtail the influence of excessive political contributions by any single person.” 120 Cong. Rec. 27,224 

(1974) (statement of Rep. Brademas). The congressional 

findings accompanying the 1974 enactment of the FECA 

contribution limits identified instances in which contributions to numerous separate entities had been used to 

funnel campaign funds at the request of a particular 

candidate. For example, the dairy industry had avoided 

then-existing reporting requirements by dividing a 

$2,000,000 contribution to President Nixon among hundreds of committees in different States, “which could 
3 

then hold the money for the President’s reelection campaign.” Buckley v. Valeo, 519 F.2d 821, 839 n.36 (D.C. 

Cir. 1975) (per curiam). On another occasion, a presidential aide had promised an ambassadorship to a particular individual in return for “a $100,000 contribution 

to be split between 1970 senatorial candidates designated by the White House and [President] Nixon’s 1972 

campaign.” Id. at 840 n.38. 

As inflation-adjusted for the 2011-2012 election cycle, 

FECA’s aggregate limits permitted an individual to 

make a total of $117,000 in contributions in each twoyear election cycle. 2 U.S.C. 441a(a)(3)(B); 76 Fed. Reg. 

at 8370. An individual could contribute $46,200 to candidates for federal office. 2 U.S.C. 441a(a)(3)(A); 76 

Fed. Reg. at 8370. An individual could contribute another $70,800 to non-candidate entities—i.e., national 

political parties, state political parties, and non-party 

political committees—so long as no more than $46,200 of 

that amount went to state political parties or non-party 

political committees. 2 U.S.C. 441a(a)(3)(B); 76 Fed. 

Reg. at 8370. 

2. Appellants are Shaun McCutcheon and the Republican National Committee (RNC), a national committee 

of the Republican Party. J.S. App. 2a, 4a-5a. McCutcheon alleges that he would like to make, and the RNC alleges that it would like to receive, contributions that are 

within FECA’s base limits on contributions to particular 

entities but that would (in combination with other contributions made by McCutcheon) exceed FECA’s aggregate limits. Id. at 4a-5a. 

In particular, McCutcheon alleges that during the 

2011-2012 election cycle, he contributed a total of 

$33,088 to 16 different federal candidates, but wished to 

contribute $1776 apiece to 12 more candidates. J.S. 
4 

App. 4a. Those additional contributions would have 

brought his candidate-contribution total to $54,400, 

which would have exceeded FECA’s aggregate limit by 

$8200. Id. at 4a-5a. McCutcheon also alleges that he 

wished to contribute $25,000 to each of three political 

committees established and maintained by the Republican Party (the RNC, the National Republican Senatorial 

Committee, and the National Republican Congressional 

Committee). Id. at 5a. Those contributions would have 

brought his non-candidate contributions—which included a $20,000 contribution to the Alabama Republican 

Party and a $2000 contribution to the Senate Conservatives Fund (a non-party political committee)—to 

$97,000, which would have exceeded FECA’s aggregate 

limit on contributions to non-candidate entities by 

$26,200. Ibid. McCutcheon additionally alleges a desire 

to make a similar pattern of contributions in future election cycles. Ibid. 

3. Appellants filed suit in the United States District 

Court for the District of Columbia, raising First 

Amendment challenges to both the $46,200 aggregate 

limit on contributions to federal candidates and the 

$70,800 aggregate limit on contributions to non-candidate entities. J.S. App. 1a, 4a-5a. A three-judge district court—convened pursuant to Section 403 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. 

No. 107-155, 116 Stat. 113-114—denied appellants’ request for a preliminary injunction and granted the government’s motion to dismiss. J.S. App. 1a-17a. 

As an initial matter, the district court rejected appellants’ argument that the aggregate contribution limits 

are subject to strict scrutiny. J.S. App. 5a-8a. The district court recognized that, although this Court has applied strict scrutiny to expenditure limits (i.e., limits on 
5 

amounts spent directly on political speech), it has not 

done so for contribution limits (i.e., limits on amounts 

given to support others’ political activity). Id. at 6a (citing, inter alia, Arizona Free Enter. Club’s Freedom 

Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)). Rather, this Court has held that contribution limits are 

“valid as long as they satisfy ‘the lesser demand of being 

closely drawn to match a sufficiently important interest.’” Ibid. (quoting McConnell v. FEC, 540 U.S. 93, 136 

(2003), overruled in part by Citizens United v. FEC, 130 

S. Ct. 876 (2010)). The Court has found that less stringent standard to be appropriate because contribution 

limits “primarily implicate the First Amendment rights 

of association, not expression, and contributors remain 

able to vindicate their associational interests in other 

ways.” Id. at 8a (citing Buckley v. Valeo, 424 U.S. 1, 22, 

28 (1976) (per curiam)). The district court applied that 

less stringent standard here, explaining that FECA’s 

aggregate limits “do not regulate money injected directly into the nation’s political discourse; the regulated 

money goes into a pool from which another entity draws 

to fund its advocacy.” Id. at 9a (citing California Med. 

Ass’n v. FEC, 453 U.S. 182, 195-196 (1981) (plurality 

opinion)). 

Applying that standard to the aggregate limits at issue here, the district court observed that this Court has 

identified two important governmental interests that 

justify contribution limits: (1) “preventing corruption or 

the appearance of corruption”; and (2) “preventing circumvention of contribution limits imposed to further 

[the government’s] anti-corruption interest.” J.S. App. 

9a (citing Buckley, 424 U.S. at 26-27, 38). The district 

court explained that, because appellants had not challenged the base limits on contributions to individual en-
6 

tities (e.g., the $2500 per election limit on contributions 

to candidates), the court could “assume [those limits] 

are valid expressions of the government’s anticorruption 

interest.” Id. at 11a. “[T]hat being so,” the court continued, “we cannot ignore the ability of aggregate limits 

to prevent evasion of the base limits.” Ibid. 

The district court explained that, in Buckley v. Valeo, 

supra, this Court had upheld the aggregate contribution 

limit in the then-current version of FECA as “no more 

than a corollary of the basic individual contribution limitation that [it found] to be constitutionally valid.” J.S. 

App. 11a (quoting Buckley, 424 U.S. at 38); see id. at 

15a-16a (finding appellants’ overbreadth claim to be 

foreclosed by Buckley). The district court drew additional support from this Court’s decision in FEC v. Colorado Republican Federal Campaign Committee, 533 

U.S. 431 (2001) (Colorado II), which upheld FECA’s restrictions on party expenditures that are coordinated 

with a candidate. The district court noted, inter alia, 

that the decision in Colorado II had rested largely on a 

concern that contributions to one entity (a political party) could be used effectively to circumvent the base limits on contributions to another (an individual candidate). 

J.S. App. 12a (citing Colorado II, 533 U.S. at 459). The 

district court reasoned that the aggregate contribution 

limits here served to prevent similar circumvention, 

which might otherwise occur through artifices such as 

transfers of contributions between different party committees. Ibid. The district court stated that it would 

“follow [this] Court’s lead and conceive of the contribution limits as a coherent system” that includes both base 

limits and aggregate limits, “rather than merely a collection of individual limits stacking prophylaxis upon 

prophylaxis.” Id. at 13a. 
7 

The district court also rejected appellants’ arguments 

that FECA’s aggregate contribution limits are too low. 

J.S. App. 13a-15a. The district court cited several decisions of this Court for the proposition that “[i]t is not 

the judicial role to parse legislative judgments about 

what limits to impose.” Id. at 13a (citing Randall v. 

Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion); Colorado II, 533 U.S. at 466; Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377, 387-388 (2000); Buckley, 424 U.S. at 

30). It further explained, inter alia, that “individuals 

remain able to volunteer, join political associations, and 

engage in independent expenditures.” Id. at 15a. 

ARGUMENT 

The three-judge district court’s unanimous decision 

reflects a straightforward application of this Court’s 

precedents. This Court upheld FECA’s aggregate contribution limit in Buckley v. Valeo, 424 U.S. 1, 38 (1976) 

(per curiam), and that holding applies with full force to 

the aggregate limits in the current version of the statute. The appeal should therefore be dismissed for lack 

of a substantial federal question. In the alternative, the 

judgment of the district court should be affirmed. 

1. In Buckley, this Court upheld the constitutionality 

of various contribution limitations in the 1974 version of 

FECA, including a base limit of $1000 on contributions 

by an individual to a candidate and an aggregate limit of 

$25,000 on total contributions by an individual in any 

calendar year. 424 U.S. at 23-38. In doing so, the Court 

recognized that limits on contributions, unlike limits on 

expenditures, are not subject to strict scrutiny under 

the First Amendment. Compare, e.g., id. at 24-25, with 

id. at 52-54. Instead, the Court concluded that contribution limits are constitutional so long as the government 

“demonstrates a sufficiently important interest and em-
8 

ploys means closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. at 25. 

The Court explained that, “[b]y contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group 

may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s 

ability to engage in free communication.” Buckley, 424 

U.S. at 20-21. That is because “the transformation of 

contributions into political debate involves speech by 

someone other than the contributor.” Id. at 21. While 

the contribution itself “serves as a general expression of 

support for the candidate and his views,” it “does not 

communicate the underlying basis for the support,” and 

the “quantity of communication by the contributor does 

not increase perceptibly with the size of his contribution, 

since the expression rests solely on the undifferentiated, 

symbolic act of contributing.” Ibid. Furthermore, although contribution limits “impinge on protected associational freedoms” by “limit[ing] one important means of 

associating with a candidate or committee,” they do not 

preclude other means of association, and they “leave the 

contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.” Id. at 22. 

Applying the reduced degree of scrutiny appropriate 

to contribution limits, the Court in Buckley identified 

two “weighty interests * * * sufficient to justify” the 

then-current $1000 limit on individual contributions to 

candidates. 424 U.S. at 28-29. First, the limit reduced 

the opportunity for individuals to use large contributions “to secure a political quid pro quo from current 

and potential office holders.” Id. at 26-27. Second, and 

“[o]f almost equal concern,” the limit reduced “the ap-
9 

pearance of corruption stemming from public awareness 

of the opportunities for abuse inherent in a regime of 

large individual financial contributions.” Id. at 27. 

Turning to the $25,000 aggregate contribution limit, 

the Court found it to be “no more than a corollary of the 

basic individual contribution limitation” that the Court 

had already “found to be constitutionally valid.” Buckley, 424 U.S. at 38. The Court accepted that the “overall 

$25,000 ceiling does impose an ultimate restriction upon 

the number of candidates and committees with which an 

individual may associate himself by means of financial 

support.” Ibid. It reasoned, however, that “this quite 

modest restraint upon protected political activity serves 

to prevent evasion of the $1,000 contribution limitation 

by a person who might otherwise contribute massive 

amounts of money to a particular candidate through the 

use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party.” Ibid. 

2. In this case, appellants do not challenge the constitutionality of FECA’s base limits on contributions to 

particular candidates or political committees. J.S. App. 

11a & n.4. They argue instead that, even if the base limits are constitutional, FECA’s aggregate contribution 

limits violate the First Amendment. That argument is 

foreclosed by Buckley’s holding that the aggregate ceiling is a permissible legislative effort “to prevent evasion” of the individual limits. 424 U.S. at 38. Contrary 

to appellants’ contentions, nothing in this Court’s postBuckley case law or in the current version of FECA justifies abandoning that holding. 

a. Appellants first contend (J.S. 6-9) that strict scrutiny should apply to the current aggregate limits. That 

contention is unfounded. Since Buckley, this Court has 
10 

continued to adhere to the distinction between expenditure limits (which are subject to strict scrutiny) and contribution limits (which are not). See, e.g., Arizona Free 

Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 

2806, 2817 (2011) (“[W]e have subjected strictures on 

campaign-related speech that we have found less onerous to a lower level of scrutiny and upheld those restrictions. For example, after finding that the restriction at 

issue was ‘closely drawn’ to serve a ‘sufficiently important interest,’ * * * we have upheld governmentimposed limits on contributions to candidates.”) (citing 

McConnell v. FEC, 540 U.S. 93, 136 (2003), overruled in 

part by Citizens United v. FEC, 130 S. Ct. 876 (2010); 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-388 

(2000); and Buckley, 424 U.S. at 23-35). 

Appellants assert that the biennial contribution limits 

in the current version of FECA “function in essence as 

expenditure limits” because they restrict “how many

entities an individual may express support for, or associate with, by making base-level contributions, i.e., how 

much one may spend on political expression and association as base-level contributions.” J.S. 8; see J.S. 6. The 

aggregate limit upheld in Buckley, however, imposed 

the very same type of restriction about which appellants 

now complain. The Court there took as a given that the 

“overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees 

with which an individual may associate himself by means 

of financial support,” but it did not apply strict scrutiny, 

and it upheld the aggregate limit against constitutional 

challenge. 424 U.S. at 38. Appellants provide no persuasive reason for applying a different level of scrutiny 

now. 
11 

b. Appellants next contend (J.S. 9-14) that postBuckley amendments to FECA have undermined the 

anti-circumvention rationale on which the Buckley Court 

relied in upholding the aggregate limit. Appellants observe (J.S. 12) that, under the version of the law in effect 

when Buckley was decided, the only base individual contribution limit in FECA was a $1000 limit on contributions to candidates. By contrast, the current version of 

FECA contains base limits on individual contributions to 

party and non-party political committees as well. See 2 

U.S.C. 441(a)(1)(B)-(D). Appellants argue that these 

additional base limits adequately address any circumvention concerns that may exist, leaving no anticircumvention work left for the aggregate contribution 

limits to do. 

That argument is misconceived. Without a ceiling on 

aggregate contributions, contributors now could still do 

exactly what the Buckley-era aggregate limit permissibly prevented: “contribute massive amounts of money 

to a particular candidate through the use of unearmarked contributions to political committees likely to 

contribute to that candidate, or huge contributions to 

the candidate’s political party.” 424 U.S. at 38. To be 

sure, whereas the aggregate contribution limit was previously the only check on “huge contributions” to a single political committee or political party, FECA now 

contains specific limits that more directly address that 

concern. Contrary to appellants’ contention, however, 

those more specific limits do not fully obviate the danger 

that limits on contributions to a particular candidate 

may be circumvented through contributions to other recipients. 

A particularly effective circumvention technique, 

both when Buckley was decided and today, would be to 
12 

donate money to many different entities, each of which 

could then make its own contribution to the candidate. 

For two principal reasons, that technique is even easier 

now than it was when Buckley was decided. First, more 

than four times as many political committees exist today 

as in 1976. FEC, PAC Count—1974 to Present, http://

www.fec.gov/press/summaries/2011/2011paccount.shtml 

(last visited Dec. 28, 2012) (listing 1146 political committees as of Dec. 31, 1976 and 5220 as of July 1, 2012). Second, it is much simpler today than in 1976 to determine 

which candidates are likely to benefit from a contribution to a particular committee, as many committees provide that information on their websites. See, e.g., 

EMILY’s List, Our Races, http://www.emilyslist.org/

what/races (last visited Dec. 28, 2012); Press Release, 

NARAL Pro-Choice America PAC Announces New Endorsements in Key House, Senate Contests To End War 

on Women (Apr. 3, 2012), http://www.prochoiceamerica.

org/elections/elections-press-releases/2012/pr04032012_

pac-endorsements.html. 

Appellants nonetheless argue (J.S. 18-19) that the 

aggregate limits are superfluous. In their view, Congress has “made the judgment” that, if a contribution to 

a single entity is below the base limit (e.g., if a contribution to a political party is below $30,800), it presents no 

“cognizable” risk of corruption or circumvention. See 

ibid. Appellants further contend that, if no single contribution within the base limits poses a cognizable danger, Congress can have no legitimate interest in regulating the number of such contributions that an individual 

makes. See J.S. 19. Both steps of appellants’ reasoning 

are flawed. 

First, Congress’s choice of applicable base limits on 

contributions to particular candidates or other entities 
13 

does not reflect any implicit determination that contributions below those limits pose no risk whatever of corruption or circumvention. Rather, the base limits strike 

a balance between enabling individuals to legitimately 

influence elections and reducing the opportunities for 

actual and apparent corruption. See, e.g., Buckley, 424 

U.S. at 26 (observing that “the Act’s primary purpose 

[is] to limit the actuality and appearance of corruption”) 

(emphasis added). Second, even if a single contribution 

below the base limit were per se risk-free, an unchecked 

proliferation of similar contributions would still pose 

meaningful dangers. As discussed above, multiple contributions create the risk that an individual contributor 

can circumvent the base limits by channeling his money 

in such a way that a particular target is likely to receive 

much more than the base limits would allow (e.g., by 

contributing to political committees likely to contribute 

to a particular candidate). That is the precise risk that 

the Court in Buckley recognized as sufficient to uphold 

the aggregate contribution limit. Id. at 38. 

Even apart from the risk that the base contribution 

limits may be circumvented by transfers of funds between the various recipients of contributions from a single donor, FECA’s aggregate limits serve a legitimate 

anti-corruption purpose. If the aggregate limits did not 

exist, “an individual might contribute $3.5 million to one 

party and its affiliated committees in a single election 

cycle,” yet remain in compliance with all of FECA’s base 

contribution limits. J.S. App. 3a & n.1. Congress could 

reasonably conclude that an individual who made contributions of that magnitude to a party’s overall electoral 

efforts might acquire actual or perceived “improper influence” (Buckley, 424 U.S. at 27) over the party’s elect-
14 

ed officials, even if no single contribution was likely to 

have that effect. 

This Court’s decision in California Medical Association v. FEC, 453 U.S. 182 (1981), confirms that aggregate limits and limits on contributions to political committees can permissibly coexist under the First Amendment. In that case, the Court upheld the constitutionality of a $5000 limit on contributions by an individual or 

an unincorporated association to a “multicandidate political committee” (i.e., a political committee that receives 

contributions from more than 50 people and contributes 

to more than five candidates). Id. at 184-185 & n.1 (citing 2 U.S.C. 441a(a)(4)). A plurality of the Court reasoned that, if a donor could make unlimited contributions to multicandidate political committees, he could 

circumvent both the $1000 limit on individual contributions to candidates and the $25,000 limit on aggregate 

contributions to candidates, simply by giving large sums 

to the multicandidate committee and allowing the committee to make the contributions to the candidates. Id.

at 198 (plurality opinion). Justice Blackmun’s concurrence contained similar reasoning. Id. at 203 (Blackmun, J., concurring in part and concurring in the judgment) (agreeing that the limit on contributions to multicandidate committees could be upheld on anticircumvention grounds, and analogizing the limit to “the 

$25,000 limitation on total contributions in a given year 

that Buckley held to be constitutional”). A majority of 

the Court thus recognized that aggregate limits can operate in tandem with limits on contributions to political 

committees. Appellants’ contention that the First 
15 

Amendment forces Congress to choose one or the other 

cannot be squared with that analysis.1

c. Appellants contend (J.S. 16-28) that FECA’s aggregate contribution limits are too far attenuated from 

actual anti-corruption and anti-circumvention concerns 

to survive First Amendment scrutiny. That is essentially a repackaging of their argument that base contribution limits obviate the need for aggregate contribution 

limits. It fails for much the same reasons, as well as 

several others. 

First, appellants’ reliance (J.S. 17) on isolated language from the controlling opinion in FEC v. Wisconsin 

Right to Life, Inc., 551 U.S. 449 (2007) (WRTL), is misplaced. In concluding that BCRA’s restrictions on corporate “electioneering communications” were unconstitutional as applied to the political advertisements at issue in that case, see id. at 455-457, 460, 481, the controlling opinion stated that “a prophylaxis-upon-prophylaxis 

approach to regulating expression is not consistent with 

strict scrutiny,” id. at 479. That statement has no bearing on this case. Unlike the restrictions on independent 

advocacy that were at issue in WRTL, the contribution 

limits at issue here do not “regulat[e] expression” and 

are not subject to “strict scrutiny.” Ibid. Indeed, the 

controlling opinion in WRTL relied on the established 

 

1

 Appellants suggest (J.S. 24 n.9) that aggregate limits on individual contributions are “underinclusive” because multicandidate political 

committees do not have similar aggregate limits. That reasoning is 

faulty. Imposing similar aggregate limits on multicandidate committees would undercut the purpose of such committees, which is to provide a mechanism for multiple individuals to pool their money to support multiple candidates. Congress would have little reason to enable 

the creation of an entity to take in, say, $255,000 per year ($5000 

from each of 51 persons) if that entity were then limited to contributing a total of $46,200 biennially. 
16 

distinction between contributions and independent expenditures, observing that “[t]o equate WRTL’s ads 

with contributions is to ignore their value as political 

speech.” Ibid. 

Second, FECA’s aggregate limits are not properly 

characterized as a “prophylaxis-upon-prophylaxis.” The 

premise of that argument is that contribution limits are 

themselves simply a prophylactic measure against bribery-like quid pro quo arrangements with public officials. 

See J.S. 20. The Court in Buckley observed, however, 

that, because bribery laws reach “only the most blatant 

and specific attempts” to corrupt public officials with 

money, those laws do not fully vindicate the government’s anti-corruption interests. 424 U.S. at 28; see 

McConnell, 540 U.S. at 143 (noting that the Court in 

Buckley “expressly rejected the argument that antibribery laws provided a less restrictive alternative to 

FECA’s contribution limits”). In particular, the Court 

recognized that contribution limits promote an interest, 

“[o]f almost equal concern as the danger of actual quid 

pro quo arrangements,” in reducing “the impact of the 

appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime 

of large individual financial contributions.” Buckley, 424 

U.S. at 27; see Shrink Mo. Gov’t PAC, 528 U.S. at 390 

(“The public interest in countering [the perception of 

corruption] was * * * the entire answer to the 

overbreadth claim raised in the Buckley case.”); see also 

McConnell, 540 U.S. at 143-144. 

Because this Court’s decisions “have made clear that 

the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political 

contribution limits,” McConnell, 540 U.S. at 143, such 

limits are not themselves prophylactic. See id. at 143-
17 

144. This Court’s precedents additionally recognize that 

the government’s interests in combating corruption and 

its appearance “have been sufficient to justify not only 

contribution limits themselves, but laws preventing the 

circumvention of such limits.” Id. at 144; see, e.g., Colorado II, 533 U.S. 431, 456 (2001) (“[A]ll Members of the 

Court agree that circumvention is a valid theory of corruption.”). As the Court in Buckley put it, aggregate 

contribution limits are simply a “corollary” of base contribution limits. 424 U.S. at 38.2

Third, appellants are mistaken in contending (J.S. 20-

23, 27-28) that the government’s anti-corruption and anti-circumvention interests are adequately protected by 

FECA’s “earmarking” provision, 2 U.S.C. 441a(a)(8). 

That provision counts contributions to one entity (e.g., a 

political committee) earmarked for transfer to a second 

entity (e.g., a candidate) as contributions to that second 

entity for purposes of a person’s base contribution limits 

(e.g., the $2500 limit on candidate contributions). Ibid. 

The Court in Buckley recognized, however, that aggregate limits serve the permissible interest of preventing 

 

2

 Appellants assert (J.S. 15) that this Court’s decision in Citizens 

United v. FEC, supra, called the constitutionality of contribution limits into question by restricting the scope of the government’s anticorruption interest to direct quid pro quo exchanges. Appellants’ reliance on Citizens United is misplaced. That case involved limitations 

on independent expenditures, and the Court expressly declined to 

address the constitutionality of limitations on contributions. See, e.g., 

130 S. Ct. at 909 (“Citizens United has not made direct contributions 

to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous 

First Amendment scrutiny.”); ibid. (observing that “contribution limits * * * have been an accepted means to prevent quid pro quo corruption”). 
18 

circumvention “through the use of unearmarked contributions.” 424 U.S. at 38 (emphasis added). Appellants’ 

argument is also foreclosed by this Court’s decision in 

Colorado II, which rejected the contention that the earmarking provision constitutes “the outer limit of acceptable tailoring” in support of the government’s anticorruption and anti-circumvention interests. 533 U.S. at 

462; see J.S. App. 13a. The Court in Colorado II explained that such a contention “ignores the practical difficulty of identifying and directly combating circumvention under actual political conditions,” which can include 

various informal ways for political-party contributors to 

indicate how they want their money spent, and which 

make circumvention “very hard to trace.” 533 U.S. at 

462; see also id. at 459 (describing “tally system,” 

through which political parties helped channel funds 

from contributors to candidates while avoiding formal 

earmarking). 

Fourth, appellants are wrong in asserting (J.S. 24, 

26) that aggregate contribution limits constitute an impermissible attempt to “level the playing field” by equalizing the amount of speech on different sides of a political campaign. The Court in Buckley recognized that 

contribution limits, unlike expenditure limits, are not 

speech-equalization measures. 424 U.S. at 25-26 & n.26. 

“Contribution limitations alone,” the Court explained, 

“would not reduce the greater potential voice of affluent 

persons and well-financed groups, who would remain 

free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade 

voters.” Id. at 26 n.26. 

d. Appellants appear to contend (J.S. 15-17, 32-37) 

that the structure of FECA’s current aggregate limits 

(which are broken into separate categories for contribu-
19 

tions to candidates and contributions to non-candidate 

entities) materially differs from the structure of the aggregate limit considered in Buckley (which was not broken out in that fashion). That difference provides no basis for avoiding the binding force of Buckley’s holding 

that an aggregate limit is constitutional. As the Court 

recognized in Buckley, the undifferentiated $25,000 limit 

had the purpose and effect of limiting both total contributions to parties and total contributions to candidates. 

424 U.S. at 38. The minor structural change of specifying two separate aggregate limits, rather than a single 

aggregate limit, cannot render the current statutory 

scheme unconstitutional. 

In any event, appellants’ objections to the two distinct aggregate limits fail on their own terms. Notwithstanding appellants’ reliance (J.S. 15-16) on a plurality 

opinion at an earlier stage of the same case, this Court’s 

decision in Colorado II squarely rejected the proposition 

that contributions to political parties have no potential 

for corruption or circumvention. The Court recognized 

that, “whether they like it or not, [parties] act as agents 

for spending on behalf of those who seek to produce obligated officeholders.” 533 U.S. at 452. The record in 

Colorado II showed that “substantial donations turn the 

parties into matchmakers whose special meetings and 

receptions give the donors the chance to get their points 

across to the candidates.” Id. at 461. Moreover, as the 

Court observed in a later case, “there is no meaningful 

separation between the national party committees and 

the public officials who control them” because the “national committees of the two major parties are both run 

by, and largely composed of, federal officeholders and 

candidates.” McConnell, 540 U.S. at 155 (internal quotation marks and brackets omitted). 
20 

As for the aggregate limits on contributions to candidates, appellants are also wrong in suggesting (J.S. 33-

35) that candidates cannot serve as conduits for circumventing the individual contribution limits. Just as a contributor can give $5000 each to a number of political 

committees that in turn give to one candidate, the contributor can give $5000 each to a number of candidates 

who in turn give to one candidate (or to the party, which 

can make coordinated or independent expenditures in 

support of that candidate). Cf. Colorado II, 533 U.S. at 

459-460 (describing political party’s system of “informal 

bookkeeping * * * to connect donors to candidates 

through the accommodation of a party”). Appellants do 

not appear to dispute that such transfers take place, and 

FEC data show that candidates in “safe” districts regularly contribute campaign funds to candidates in their 

party who face more difficult elections. See generally 

FEC, Detailed Files About Candidates, Parties, and 

Other Committees, http://www.fec.gov/finance/disclosure

/ftpdet.shtml (last visited Dec. 28, 2012); FEC, 

Disclosure Data Catalog, http://www.fec.gov/data/

DataCatalog.do?cf=downloadable (last visited Dec. 28, 

2012). And, contrary to appellants’ speculation (J.S. 35) 

that the candidates themselves are likely to take sole 

credit for such contributions, evidence has shown that, 

even in contexts where contributions are not made directly to federal candidates, “federal officeholders [have 

been] well aware of the identities of the donors.” 

McConnell, 540 U.S. at 147. 

e. Finally, it is irrelevant that the Court in Buckley

addressed only a facial constitutional challenge to 

FECA’s aggregate contribution limit, while appellants 

describe their own suit as raising as-applied and overbreadth challenges. See, e.g., J.S. 10, 27-28. A plaintiff’s 
21 

characterization of his own challenge is not controlling, 

Citizens United, 130 S. Ct. at 893, and appellants do not 

meaningfully differentiate their claims from those rejected in Buckley. See, e.g., J.S. 28-29 (arguing that aggregate limits on candidate contributions are substantially overbroad for the same reason that they are alleged to be facially unconstitutional). In particular, appellants identify no unusual feature of their own circumstances that would render the aggregate limits invalid 

as applied to them if the limits are generally constitutional. 

3. As an alternative to their primary argument, 

which challenges the existence of any aggregate contribution limits at all, appellants contend (J.S. 29-32, 34-37) 

that FECA’s current aggregate limits violate the First 

Amendment because the amount of contributions they 

allow is too low. That contention fails under well-settled 

law and presents no substantial question for this Court 

to review. 

a. As the district court recognized (J.S. App. 13a), 

this Court has generally declined to second-guess legislative judgments about the exact dollar figure of contribution limits. The Court has “ordinarily * * * deferred to the legislature’s determination of such matters,” recognizing that a “legislature is better equipped 

to make such empirical judgments” based on legislators’ 

“particular expertise in matters related to the costs and 

nature of running for office.” Randall v. Sorrell, 548 

U.S. 230, 248 (2006) (plurality opinion) (internal quotation marks and citation omitted); see Davis v. FEC, 554 

U.S. 724, 737 (2008) (“When contribution limits are challenged as too restrictive, we have extended a measure of 

deference to the judgment of the legislative body that 

enacted the law.”); Buckley, 424 U.S. at 30 (“[A] court 
22 

has no scalpel to probe, whether, say, a $2,000 ceiling 

might not serve as well as $1,000.”). 

Consistent with this deferential standard of review, 

the level of a contribution limit violates the First 

Amendment only if it is “so low as to ‘prevent candidates 

and political committees from amassing the resources 

necessary for effective advocacy.’” McConnell, 540 U.S. 

at 135 (quoting Buckley, 424 U.S. at 21) (brackets omitted); see Buckley, 424 U.S. at 30 (“[D]istinctions in degree become significant only when they can be said to 

amount to differences in kind.”). The Court “ask[s], in 

other words, whether the contribution limitation [is] so 

radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the 

level of notice, and render contributions pointless.” 

Shrink Mo. Gov’t PAC, 528 U.S. at 397. “Such being the 

test, the issue * * * cannot be truncated to a narrow 

question about the power of the dollar, but must go to 

the power to mount a campaign with all the dollars likely 

to be forthcoming.” Ibid.

b. Appellants offer two arguments to support their 

contention that FECA’s current aggregate limits are 

unconstitutionally low. First, appellants assert (J.S. 34) 

that, when inflation is taken into account, the current 

aggregate limits are in certain respects more restrictive 

than the $25,000 aggregate limit upheld in Buckley. 

Appellants acknowledge, however, that $25,000 in 1974 

is equivalent to $116,676 today, which is slightly less 

than the current $117,000 combined aggregate limit on 

contributions to candidates and committees. See ibid. 

In any event, this Court has previously rejected an inflation-based argument materially indistinguishable from 

appellants’ current challenge. See Shrink Mo. Gov’t 

PAC, 528 U.S. at 396-397. The Court explained in that 
23 

case that reading Buckley to “set a minimum constitutional threshold for contribution limits” reflects “a fundamental misunderstanding of what [Buckley] held.” Id.

at 396. “[T]he dictates of the First Amendment,” the 

Court explained, “are not mere functions of the Consumer Price Index.” Id. at 397. 

Second, appellants seek to compare (J.S. 29-31, 36-37) 

the aggregate contribution limits at issue here to the 

state contribution limits that were struck down in Randall v. Sorrell, supra, the only case in which this Court 

has found a contribution limit to be unconstitutionally 

low. See 548 U.S. at 236-237. The state limits at issue in 

Randall restricted individual contributions to a candidate to between $200 and $400 (depending on the office) 

in a two-year period; they were not indexed to inflation; 

they applied to contributions made by political committees (including political parties) as well as those made by 

individuals; and they counted the value of certain selfpaid expenses by campaign volunteers (such as travel 

expenses) as contributions. See id. at 237-239, 259 (plurality opinion). The plurality found the limits unconstitutional “based not merely on the low dollar amounts of 

the limits themselves, but also on the statute’s effect on 

political parties and on volunteer activity in Vermont 

elections.” Id. at 253. “Taken together,” the Court concluded, “[the state law’s] substantial restrictions on the 

ability of candidates to raise the funds necessary to run 

a competitive election, on the ability of political parties 

to help their candidates get elected, and on the ability of 

individual citizens to volunteer their time to campaigns 

show that the Act is not closely drawn to meet its objectives.” Ibid. 

The FECA limits at issue here differ in key respects 

from the limits at issue in Randall. The FECA limits 
24 

permit substantially higher contributions, see pp. 1-3, 

supra; they generally are indexed for inflation, see 2 

U.S.C. 441a(c); they allow political parties to contribute 

amounts significantly greater than the individual contribution limit, see Randall, 548 U.S. at 258 (plurality opinion); and they do not count many volunteer activities as 

contributions, see 2 U.S.C. 431(8)(B). Appellants do not 

and could not plausibly allege that FECA’s aggregate 

limits substantially restrict the ability of any federal 

candidate to “run a competitive election” or the ability of 

a national political party “to help [its] candidates get 

elected.” Randall, 548 U.S. at 253 (plurality opinion); 

see, e.g., FEC, 2011-2012 Election Cycle: Total Disbursements by Entity Type, http://www.fec.gov/law/

2012TDbyEntity.shtml (last visited Dec. 28, 2012) (reporting that federal candidates spent more than $3 billion, and parties more than $2 billion, in the 2011-2012 

election cycle). Appellants’ argument instead is simply 

that the aggregate amount an individual contributor can 

give, if amortized across all federal candidates of a particular party, results in a somewhat smaller percandidate contribution than the individual limits found 

unconstitutional in Randall. J.S. 30-31. That argument 

substantially oversimplifies Randall, and it overlooks 

the fact that the constitutionality of a contribution limit 

is analyzed from the perspective of the recipient, not the 

contributor. See, e.g., McConnell, 540 U.S. at 135 

(“[W]e have said that contribution limits impose serious 

burdens on free speech only if they are so low as to ‘prevent candidates and political committees from amassing 

the resources necessary for effective advocacy.’”) (quoting Buckley, 424 U.S. at 21) (brackets omitted). 

Appellants are also wrong in asserting that the aggregate limits in FECA impermissibly constrict a con-
25 

tributor’s First Amendment rights. Appellant McCutcheon or any other contributor can engage in the “symbolic act of contributing,” Buckley, 424 U.S. at 21, to 

every candidate in every federal election. Individuals 

are limited only in the amounts they can give to those 

candidates: the more candidates to whom they contribute, the smaller their average contributions must be. 

But that is not a substantial First Amendment burden, 

for “[t]he quantity of communication by the contributor 

does not increase perceptibly with the size of his contribution.” Ibid. 

As previously noted, the Court in Buckley did not 

dispute that the $25,000 limit at issue there “impose[d] 

an ultimate restriction upon the number of candidates 

and committees with which an individual may associate 

himself by means of financial support.” 424 U.S. at 38. 

Notwithstanding that “modest restraint,” it upheld the 

aggregate limit against substantially the same constitutional challenge that appellants assert in this case. Ibid. 

That holding remains good law, and it required the dismissal of appellants’ complaint. 
26 

CONCLUSION 

The appeal should be dismissed for want of a substantial federal question. In the alternative, the judgment of the district court should be affirmed. 

Respectfully submitted. 

ANTHONY HERMAN

General Counsel 

LISA J. STEVENSON

Deputy General Counsel 

DAVID KOLKER

Associate General Counsel 

ADAV NOTI

Acting Assistant General 

Counsel 

Federal Election Commission

DONALD B. VERRILLI, JR. Solicitor General 

JANUARY 2013