UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

)

VIRGINIA JAMES, )

)

Plaintiff, ) Civ. No. 12-1451 (JRB, RLW, JEB)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) OPPOSITION TO RESPONSE TO

) ORDER TO SHOW CAUSE

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

Pursuant to the Court’s Minute Order of October 11, 2012, defendant Federal Election 

Commission respectfully submits the following opposition to plaintiff’s Response to Order to 

Show Cause (Docket No. 17) (“Pl.’s Show Cause Br.”). 

This Court’s opinion in McCutcheon v. FEC1 disposes of plaintiff’s claims. Plaintiff’s 

plan to contribute more than $100,000 to federal candidates presents at least the same potential 

of circumventing the anti-corruption provisions of the Federal Election Campaign Act (“FECA”) 

as did Mr. McCutcheon’s plan to contribute more than $50,000 to federal candidates. Plaintiff’s 

attempts to distinguish this case from McCutcheon fail because they rely entirely on inaccurate 

and irrelevant assertions of law, none of which can overcome McCutcheon’s faithful application 

of Buckley v. Valeo, 424 U.S. 1 (1976), or provide any basis for reaching a different result here.

LEGAL AND FACTUAL BACKGROUND

FECA provides than an individual may contribute no more than $2,500 per election to 

any federal candidate, 2 U.S.C. § 441a(a)(1), and no more than $46,200 to all federal candidates 

 1 Civ. No. 12-1034, slip op. (D.D.C. Sept. 28, 2012).

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combined during a two-year election cycle, 2 U.S.C. § 441a(a)(3)(A). The history and purpose 

of these provisions are set forth in McCutcheon, slip op. at 1-3. See also Def.’s Opp. to Pl.’s

Mot. for Prelim. Inj. at 1-4, McCutcheon v. FEC, Civ. No. 12-1034 (D.D.C. July 9, 2012 (Docket 

No. 16)) (“FEC Br.”).

Plaintiff Virginia James is an individual United States citizen who alleges a desire to 

contribute more than $46,200 but no more than $117,000 to federal candidates during the current 

election cycle. (Compl. ¶ 5.) So far, James has contributed $27,000 to candidates and $5,000 to 

a federal political committee (“PAC”). (Compl. ¶¶ 15, 17.) She has also given more than

$1 million to “super PACs,” i.e., political committees that make no direct contributions but pay 

for independent expenditures that expressly advocate the election or defeat of candidates.

2

ARGUMENT

This Court’s opinion in McCutcheon — particularly its interpretation and application of 

Buckley — controls this case. McCutcheon noted that at the time of Buckley, FECA imposed 

two relevant limits on contributions by individuals: A base limit of $1,000 on contributions to 

candidates, and an aggregate limit of $25,000 per two-year election cycle to all candidates, 

political parties, and PACs combined. McCutcheon, slip op. at 1-2; see generally FEC Br. at 1-4

(describing statutory scheme). In assessing the constitutionality of these provisions, Buckley

acknowledged that the aggregate limit was a “restriction on associational freedom” but held that 

“this quite modest restraint upon protected political activity serves to prevent evasion” of the

base limit on contributions to candidates. 424 U.S. at 38; see also FEC Br. at 3, 7-9 (discussing 

Buckley). Recognizing this, McCutcheon reiterated Buckley’s conclusion that the aggregate limit 

is constitutional as “‘a corollary of the basic individual contribution limitation,’” McCutcheon, 

 2 A list of plaintiff’s contributions can be obtained by entering her name into the FEC’s 

contribution-search page at http://www.fec.gov/finance/disclosure/norindsea.shtml.

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slip op. at 9 (quoting Buckley, 424 U.S. at 38), which the Supreme Court had found 

constitutional earlier in its opinion, see Buckley, at 26-29.

Regarding limits on individual contributions to candidates, the only thing that has 

changed since Buckley is that the dollar amounts have been raised: The base limit is now $2,500, 

and the aggregate limit is now $46,200. See 2 U.S.C. § 441a(a)(1); McCutcheon, slip op. at 3. 

As McCutcheon held, the fact that these dollar amounts are now different than they were at the 

time of Buckley is not of constitutional concern. McCutcheon, slip op. at 10-11 (rejecting 

argument that Court should “parse legislative judgment about what limits to impose”). 

Accordingly, the only way plaintiff can prevail here is by demonstrating that Buckley’s 

upholding of the aggregate limit is no longer good law — an exceedingly difficult burden to 

meet, given that the Supreme Court has never overruled that holding or called it into question. 

McCutcheon, slip op. at 6 (“[W]e decline Plaintiffs’ invitation to anticipate the Supreme Court’s 

agenda.”) (citing Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).

McCutcheon emphatically confirms Buckley’s continued viability as to the important 

anti-circumvention interest served by FECA’s aggregate contribution limits. McCutcheon, slip 

op. at 9. Indeed, McCutcheon disposes of plaintiff’s claims in their entirety because candidates 

— like political parties and PACs — can serve as conduits for circumventing the individual 

contribution limits. Just as a contributor could give $5,000 to a number of PACs that in turn give 

to one candidate, a contributor could give $5,000 to multiple candidates who in turn give to one 

candidate. This is not mere speculation. Members in “safe” legislative districts (or with ample 

resources) collectively contribute millions of dollars to other members of their party facing more 

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difficult elections.3

 For example, in this election cycle alone, federal candidates have used the 

contributions they received to make the following contributions to other candidates:

• 57 contributions totaling $71,000 from federal candidates’ committees to the 

campaign of Kathy Hochul

• 45 contributions totaling more than $60,000 from federal candidates’ committees 

to the campaign of Joe Donnelly

• 44 contributions totaling more than $59,000 from federal candidates’ committees 

to the campaign of Francisco Canseco

• 43 contributions totaling $57,500 from federal candidates’ committees to the 

campaign of Betty Sutton

• 45 contributions totaling $57,000 from federal candidates’ committees to the 

campaign of Lois Capps

• 35 contributions totaling $54,000 from federal candidates’ committees to the 

campaign of Louise Slaughter

As these examples demonstrate, plaintiff’s desired relief would allow her to give over $100,000

to candidates with ample war chests, knowing that they are in turn likely to contribute that 

money to the campaigns of their threatened colleagues. See Buckley, 424 U.S. at 38 (noting that 

aggregate limit prevents contributor from evading limit on contributions to a candidate “through 

the use of unearmarked contributions to political committees likely to contribute to that 

candidate”); 2 U.S.C. § 431(5) (defining a candidate’s “principal campaign committee” as one 

type of political committee).

4

 Plaintiff baldly asserts that her contributions are “not capable of 

 3 Except where noted otherwise, all contribution and transfer figures in this brief were 

calculated from the FEC databases at http://www.fec.gov/finance/disclosure/ftpdet.shtml and 

http://www.fec.gov/data/DataCatalog.do?cf=downloadable. At the time of filing, the databases 

for the current election cycle include transactions from January 2011 through September 2012.

4 The phenomenon of “leadership PACs” — i.e., a PAC established by an elected official 

to collect and spend funds in support of his colleagues — further demonstrates candidates’ 

willingness to serve as conduits between individual contributors and other candidates. There are 

hundreds of leadership PACs, and they have raised over $100,000,000 in the current election 

cycle alone. See FEC, 2012 Leadership PACs and Sponsors, 

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creating an anti-circumvention concern” (see Pl.’s Show Cause Br. at 10), but she provides no 

facts or argument whatsoever to support this contention, which must in any event fail in light of 

the plain holdings of McCutcheon and Buckley, as discussed above. Channeling funds through 

this method could easily circumvent the $2,500 base limit on plaintiff’s direct contributions to 

each of the targeted candidates, and the aggregate limit is a constitutional method of preventing 

such circumvention.

5

 See McCutcheon, slip op. at 9-10. 

Furthermore, there is no limit on the amount that a candidate can contribute to a political 

party. Candidates in safe seats accordingly transfer campaign funds to their parties on a massive 

scale, including more than $24 million to the national Democratic Party and more than $35 

million to the national Republican Party in this election cycle. These transfers finance the 

parties’ activities on behalf of candidates in contested races — activities such as “coordinated 

expenditures, which have no ‘significant functional difference’ from . . . direct candidate 

contributions.” McCutcheon, slip op. at 9-10 (quoting FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 460 (2001)). Thus, in the absence of the aggregate limit, there would be a

potential for circumvention identical to that which this Court recognized in McCutcheon: 

contributors giving a large number of contributions within the base limits (but aggregating well 

above the aggregate limits) with the understanding that many of these contributions will end up 

in the hands of the parties to be spent in support of the contributors’ preferred candidates. As 

 

http://www.fec.gov/data/Leadership.do?format=html&election_yr=2012 (last visited Oct. 19, 

2012). Officeholders have used these funds to contribute more than $30,000,000 to other federal 

candidates. See OpenSecrets.org, Leadership PACs, 

http://www.opensecrets.org/pacs/industry.php?txt=Q03&cycle=2012 (last visited Oct. 19, 2012).

5 As Buckley and McCutcheon each recognized, it is irrelevant for constitutional purposes 

whether plaintiff herself intends to engage in such circumvention. See McCutcheon, slip op. 

at 12 (“The Buckley Court rejected challenges that the contribution limits are overbroad because 

most contributors are not seeking a quo for their quid . . . . [W]e join the Buckley Court in 

rejecting [that claim] . . . .”) (citing 424 U.S. at 30).

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this Court held, “it may seem unlikely that so many separate entities would willingly serve as 

conduits for a single contributor’s interests. But it is not hard to imagine a situation where the 

parties implicitly agree to such a system, and there is no reason to think the quid pro quo of an 

exchange depends on the number of steps in the transaction.” McCutcheon, slip op. at 10 

(emphasis added; internal citations omitted). 

In addition to asking the Court to disregard McCutcheon and Buckley, plaintiff claims 

that the aggregate limit on contributions to candidates is unconstitutional because it “force[s her] 

to associate with groups or organizations simply to contribute up to the full biennial aggregate 

limits.” (Pl.’s Show Cause Br. at 10.) She argues that, rather than being limited to $46,200 in 

candidate contributions, she must be allowed to contribute $117,000 directly to candidates 

because “Congress already allows” that amount through the candidate and non-candidate 

aggregate limits combined. (Id. at 3.) Plaintiff’s argument seems to be premised on a complete 

misunderstanding of the relevant statutory provisions. There is no $117,000 aggregate 

contribution limit. Rather, FECA establishes separate aggregate limits for contributions to 

candidates, 2 U.S.C. § 441a(a)(3)(A), and for contributions to non-candidate entities, 2 U.S.C. 

§ 441a(a)(3)(B). See McCutcheon, slip op. at 2 (noting that statute comprises “a set of aggregate 

limits” and differentiating it from prior version, which contained a single aggregate limit). 

Plaintiff cites no authority of any kind to support her tacit assumption that the Constitution 

prohibits Congress from establishing these limits separately. 

More specifically, there is no case law remotely suggesting that the First Amendment 

requires the total aggregate limit for contributions to all entities to be the same as the aggregate 

limit for direct contributions to candidates. To the contrary, McCutcheon’s holding that the 

aggregate limits are constitutional anti-circumvention measures, slip op. at 9-10, rejected 

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challenges to each of the aggregate limits, including the McCutcheon plaintiffs’ explicit 

challenge to the aggregate limit on candidate contributions (separate and apart from their

challenge to the non-candidate limit). See McCutcheon, slip op. at 4 (noting McCutcheon’s 

allegation that his intended contributions “would amount to aggregate candidate contributions of 

$54,400, and [non-candidate] contributions of $75,000”) (emphasis added);

6 see also 

McCutcheon v. FEC, Civ. No. 12-1034, Compl. ¶¶ 121-142 (D.D.C. June 22, 2012) (devoting 

two counts of five-count complaint to challenging aggregate limit on contributions to 

candidates). Plaintiff’s attempt to avoid that holding by recharacterizing it as addressing only a 

non-existent $117,000 limit has no basis in either the Court’s opinion or the pleadings that led 

to it.

Moreover, the fundamental import of plaintiff’s argument is that the limit of $46,200 on 

contributions to candidates is simply too low in comparison to (or when combined with) the 

$70,800 limit on other contributions. That claim cannot survive McCutcheon, in which this

Court declined to second-guess Congress’s judgment as to the exact dollar amount of each

aggregate limit. See McCutcheon, slip op. at 11 (refusing to impute constitutional significance to 

plaintiffs’ “argu[ment] that if an individual wanted to contribute equally to one candidate . . . in 

all 468 federal races . . . , he would be limited to contributing $85.29 per candidate”) (internal 

quotation marks omitted). And like the individual plaintiff in McCutcheon, Ms. James remains 

free to “to volunteer, join political associations, and engage in independent expenditures,” id. at 

12 (citing Wagner v. FEC, Civ. No. 11-1841, 2012 WL 1255145, at *9 (D.D.C. Apr. 16, 2012)), 

 6 As this quotation indicates, plaintiff’s statement (Pl.’s Show Cause Br. at 7) that 

McCutcheon “makes no mention of the specific contributions the parties wished to make” is 

incorrect. See also McCutcheon, slip op. at 4 (“[McCutcheon] wants to contribute $1,776 to 

twelve other candidates and enough money to the RNC, NRSC, and NRCC to bring his total 

contributions up to $25,000 each.”).

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to further “associate one-on-one with candidates” as she desires (Pl.’s Show Cause Br. at 10).

7

 

All of these holdings necessarily control plaintiff’s novel attempt to conflate FECA’s aggregate 

limits: She cannot prevail without demonstrating the unconstitutionality of either the existence 

or size of the aggregate limit on contributions to candidates specifically, and McCutcheon

upheld that limit in both respects.

Plaintiff’s final and equally meritless argument is that her complaint cannot be foreclosed 

by McCutcheon because this case has been styled an “as-applied” challenge. (See Pl.’s Show 

Cause Br. at 5-8.) As a general matter, plaintiff is correct that a decision upholding a statute on 

its face does not necessary foreclose subsequent as-applied challenges. See Wis. Right to Life 

Inc. v. FEC, 546 U.S. 410 (2006) (per curiam). But as another three-judge court in this District 

has noted in rejecting the same preclusion-avoidance argument plaintiff raises here:

In general, a plaintiff cannot successfully bring an as-applied challenge to 

a statutory provision based on the same factual and legal arguments the 

Supreme Court expressly considered when rejecting a facial challenge to 

that provision. Doing so is not so much an as-applied challenge as it is an 

argument for overruling a precedent.

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 157 (D.D.C.) (three-judge court), aff’d

mem., 130 S. Ct. 3544 (2010). Because Ms. James desires to contribute to candidates more than 

twice what Mr. McCutcheon had wished to contribute — $117,000 versus $54,400 — this 

Court’s rejection of Mr. McCutcheon’s challenge to this aggregate limit necessarily precludes 

her more ambitious request. The reasoning of Republican National Committee thus applies with 

full force: Plaintiff’s “as-applied” challenge cannot succeed without the Supreme Court 

 7 The Court’s observation that contribution limits leave contributors free to support 

candidates in other ways is particularly applicable to plaintiff, who has given over $1 million 

during this election cycle to finance independent advocacy for or against candidates. See supra

p. 2; see also Buckley, 424 U.S. at 21-22 (noting that contribution limits leave contributors free 

to “discuss candidates and issues” or “become a member of any political association and to assist 

personally in the association’s efforts on behalf of candidates”).

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overruling Buckley and this Court overruling McCutcheon. Because the former is impossible

here and plaintiff provides no basis for the latter, her claim is foreclosed.

* * *

“Having been taught the hard lesson of circumvention by the entire history of campaign 

finance regulation,” Congress has the power to “[p]revent[ ] corrupting activity from shifting” to 

take advantage of gaps in the statutory regime. McConnell v. FEC, 540 U.S. 93, 165-66 (2003). 

“Circumvention, after all, can be ‘very hard to trace.’” McCutcheon, slip op. at 9 (quoting Colo. 

Republican, 533 U.S. 431, 462 (2001)). Thus, Congress must have “sufficient room to anticipate 

and respond to concerns about circumvention of regulations designed to protect the integrity of 

the political process.” McConnell, 540 U.S. at 137. The aggregate limit on contributions to 

candidates protects that integrity while leaving contributors free to “discuss candidates and 

issues” or “become a member of any political association and to assist personally in the 

association’s efforts on behalf of candidates,” Buckley, 424 U.S. at 21-22, or “to volunteer, join 

political associations, and engage in independent expenditures.” McCutcheon, slip op. at 12 

(citing Wagner v. FEC, Civ. No. 11-1841, 2012 WL 1255145, at *9 (D.D.C. Apr. 16, 2012)). 

The role the aggregate limit plays within this “coherent system” of regulation, id. at 10, is 

therefore constitutional because of “the need to prevent circumvention of the entire scheme,” 

McConnell, 540 U.S. at 171-72, and “evasion of the base limits.” McCutcheon, slip op. at 9.

CONCLUSION

For the foregoing reasons, the Court should hold that this case is controlled by Buckley

and McCutcheon.

Respectfully submitted,

Anthony Herman (D.C. Bar No. 424643)

General Counsel

Case 1:12-cv-01451-JEB-JRB-RLW Document 19 Filed 10/22/12 Page 9 of 10
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Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel – Law

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

 /s/ Adav Noti

Adav Noti (D.C. Bar No. 490714)

Acting Assistant General Counsel

anoti@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

October 22, 2012 (202) 694-1650

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