UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_____________________________________

)

SHAUN McCUTCHEON, and )

)

REPUBLICAN NATIONAL COMMITTEE, )

)

Plaintiffs, ) Civ. No. 12-1034 (JRB, RLW, JEB)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) OPPOSITION TO MOTION FOR 

) PRELIMINARY INJUNCTION

Defendant. )

_____________________________________ )

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION 

TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

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

General Counsel

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

Associate General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Special Counsel to the General Counsel

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

Attorney

anoti@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

July 9, 2012 (202) 694-1650

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 1 of 50
i

TABLE OF CONTENTS

LEGAL AND FACTUAL BACKGROUND ..................................................................................1

I. THE AGGREGATE CONTRIBUTION LIMIT .................................................................1

II. FACTUAL BACKGROUND..............................................................................................4

ARGUMENT..............................................................................................................................5

I. STANDARD OF REVIEW.................................................................................................6

II. THE COMMISSION IS LIKELY TO PREVAIL ON THE MERITS OF THIS 

CASE BECAUSE THE SUPREME COURT HAS ALREADY DETERMINED 

THAT THE AGGREGATE CONTRIBUTION LIMIT IS CONSTITUTIONAL, 

AND NOTHING HAS UNDERMINED THAT HOLDING..............................................7

A. Buckley Controls the Standard of Scrutiny and the Outcome of this Case..............7

B. The Aggregate Contribution Limit Remains Closely Related to the 

Government’s Important Interests in Preventing Corruption and the 

Appearance of Corruption........................................................................................9

1. The Aggregate Contribution Limit Is a Contribution Limit, Not an 

Expenditure Limit as Plaintiffs Contend....................................................10

2. Preventing Circumvention of Contribution Limits Is Critical to 

Furthering the Government’s Important Anti-Corruption Interest ............12

3. Striking Down the Aggregate Limit Would Allow Massive 

Contributions and Undermine FECA’s Contribution Limits.....................19

4. Contributors Use Contributions to National Political Parties to Exert 

Actual or Apparently Corrupt Influence over Federal Officeholders........23

5. Non-Party Political Committees Continue to Proliferate and Provide 

Means of Circumventing the Contribution Limits.....................................28

6. One Individual Contributing Millions of Dollars Directly to Political 

Candidates Would Create, at a Minimum, the Appearance of 

Corruption..................................................................................................30

C. The Aggregate Contribution Limit Does Not Deprive National Political 

Parties of the Ability to Raise Enough Money to Engage in Effective 

Advocacy ...............................................................................................................34

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 2 of 50
ii

III. PLAINTIFFS FACE NO COGNIZABLE HARM DURING THE PENDENCY OF 

THIS CASE... ...................................................................................................................38

IV. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH 

AGAINST ENJOINING ENFORCEMENT OF THE AGGREGATE LIMIT.................41

CONCLUSION...........................................................................................................................42

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 3 of 50
iii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)..............................................................8

Bowen v. Kendrick, 483 U.S. 1304 (1987) ....................................................................................41

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

California Medical Association v. FEC, 453 U.S. 182 (1981).........................................12, 13, 28

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011).............................................................2, 18, 25

Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004).........................40

Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006) ................... 41-42

Citizens United v. FEC, 130 S. Ct. 876 (2010).................................................11, 17-18, 22, 25-26

Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) ............................................................................6

Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) (“Colorado I”) .......14, 24

Davis v. FEC, 554 U.S. 724 (2008).........................................................................................35, 38

Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................39

FEC v. Beaumont, 539 U.S. 146 (2003) ........................................................................................10

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001) (“Colorado II”)....................................................13-14, 17, 22-27, 35, 38

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)............................ 24-25, 27

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982) ............................................................17

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ....................................................................16

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005).........................................................................39

Mandel v. Bradley, 432 U.S. 173 (1977).......................................................................................26

Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) (en banc) .................................................22

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

Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009).......................................................6

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)...................................................... 10, 35-37

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 4 of 50
iv

NTEU v. United States, 927 F.2d 1253 (D.C. Cir. 1991)...............................................................39

Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011).........................................................................18

Purcell v. Gonzalez, 549 U.S. 1 (2006) ...........................................................................................6

Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75 (4th Cir. 1989) ............... 41-42

Randall v. Sorrell, 548 U.S. 230 (2006) .................................................................................. 35-37

Real Truth About Obama v. FEC, 575 F.3d 342 (4th Cir. 2009), 

vacated on other grounds, 130 S. Ct. 2371 (2010)..................................................................42

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge court),

aff’d, 130 S. Ct. 3544 (2010) ...........................................................10-12, 18, 22-23, 25-26, 38

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)..................................................................... 6-7

Tenacre Foundation v. INS, 78 F.3d 693 (D.C. Cir. 1996) ...........................................................40

Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011)..................................................18

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993)..................................................................6

United States v. Danielczyk, No. 11-4667, --- F.3d ---, 2012 WL 2445040 

(4th Cir. June 28, 2012) ...........................................................................................................18

United States v. Oakland Cannabis Buyer’s Co-op., 532 U.S. 483 (2001)...................................41

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)............................................................................6

Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001) ......................................................................6

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987).........................................................................39

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................6, 38

Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985).................................................................38

Statutes and Regulations

11 C.F.R. § 100.2.............................................................................................................................1

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”)............3

BCRA § 307(b)..........................................................................................................................3

BCRA § 307(d)..........................................................................................................................3

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 5 of 50
v

BCRA § 401.............................................................................................................................28

Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“FECA”) ..................................................1

2 U.S.C. § 437c(b)(1).................................................................................................................4

2 U.S.C. § 437d(a)(7).................................................................................................................4

2 U.S.C. § 437d(a)(8).................................................................................................................4

2 U.S.C. § 437f ..........................................................................................................................4

2 U.S.C. § 437g..........................................................................................................................4

2 U.S.C. § 438(a)(8)...................................................................................................................4

2 U.S.C. § 441a..........................................................................................................................4

2 U.S.C. § 441a(a)(1).................................................................................................................2

2 U.S.C. § 441a(a)(1)(B)............................................................................................................5

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

2 U.S.C. § 441a(a)(4).........................................................................................................27, 29

2 U.S.C. § 441a(c)(1)...............................................................................................................37

FECA Amendments of 1974, Pub. L. No. 93-443, § 101(a), 88 Stat. 1263, 1273 (1974) ..............3

FECA Amendments of 1976, Pub. L. No. 94-283, § 112, 90 Stat. 475, 486 (1976).......................3

Legislative and Administrative Materials

120 Cong. Rec.

H7810 (Aug. 7, 1974)................................................................................................................2

H7814 (Aug. 7, 1974)................................................................................................................2

H10331 (Oct. 10, 1974) ............................................................................................................2

FEC, Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist 

Bundling Disclosure Threshold, 76 Fed. Reg. 8368 (Feb. 14, 2011) ................................2, 4, 5

H.R. Rep. No. 93-1239 (1974).........................................................................................................3

S. Rep. No. 105-167 (1998).....................................................................................................21, 24

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 6 of 50
vi

FEC Reports and Data Compilations

FEC, 2012 Leadership PACs and Sponsors, 

http://www.fec.gov/data/Leadership.do?format=html&election_yr=2012 .............................33

FEC, PAC Count — 1974 to Present, 

http://www.fec.gov/press/summaries/2011/2011paccount.shtml (last updated Jan. 

2012) ........................................................................................................................................29

http://images.nictusa.com/pdf/737/12971367737/12971367737.pdf ............................................37

http://query.nictusa.com/cgi-bin/cancomsrs/?_12+C00003418 ....................................................37

http://query.nictusa.com/cgi-bin/com_ind/2011_C00496505 .......................................................40

http://www.fec.gov/data/CommitteeSummary.do?format=html&election_yr=2012....................37

http://www.fec.gov/finance/disclosure/norindsea.shtml................................................................40

Other Authorities

Bureau of Labor Statistics, Inflation Calculator, 

http://www.bls.gov/data/inflation_calculator.htm/ ..................................................................36

Club for Growth, Club for Growth PAC Endorsed Candidates, 

http://www.clubforgrowth.org/endorsedcandidates/................................................................21

Committee on Appropriations, Full Committee Members, 

http://appropriations.house.gov/about/members/.....................................................................31

Conservative Action Fund, http://conservativeactionfund.com/ ...................................................40

Federal Reserve, Balance Sheet of Households and Nonprofit Organizations, 

http://www.federalreserve.gov/releases/z1/current/z1r-5.pdf (June 7, 2012)..........................19

Raymond Hernandez, Money From Colleagues Buoys Rangel Campaign, N.Y. Times 

(May 28, 2012), http://www.nytimes.com/2012/05/29/nyregion/rangels-campaign-ishelped-by-colleagues-contributions.html (May 28, 2012).......................................................33

NARAL Pro-Choice America, Press Release, 

http://www.prochoiceamerica.org/elections/elections-pressreleases/2012/pr04032012_pac-endorsements.html (April 3, 2012).......................................21

OpenSecrets.org, Leadership PACs, 

http://www.opensecrets.org/pacs/industry.php?txt=Q03&cycle=2012...................................33

United States Census Bureau, State & Country Quick Facts, 

http://quickfacts.census.gov/qfd/states/00000.html.................................................................19

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 7 of 50
The Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“FECA”), provides that an 

individual can contribute as much as $117,000 in a two-year election cycle to all federal 

candidates, political parties, and political committees combined. More than 35 years ago, the 

Supreme Court held that this statute — which at the time imposed an aggregate limit of $25,000 

in contributions per election cycle — was consistent with the First Amendment. Plaintiffs 

Republican National Committee and Shaun McCutcheon, an individual donor, now ask this 

Court to revisit the Supreme Court’s decision and to enjoin the Federal Election Commission 

from enforcing FECA’s aggregate limits, an important tool designed by Congress to limit 

corruption and the appearance of corruption in federal elections. Plaintiffs’ attempts to introduce 

doubt about whether the Supreme Court’s holding remains good law in light of subsequent 

developments must fail. Only the Supreme Court can overrule its own decisions. And, in any 

event, none of the developments on which plaintiffs rely casts any doubt on the continued 

constitutionality of the aggregate contribution limit. 

LEGAL AND FACTUAL BACKGROUND

I. THE AGGREGATE CONTRIBUTION LIMIT

FECA imposes two types of limits on the amount of money an individual can contribute 

in connection with federal elections. First, FECA limits the amount that a person can contribute

to any one candidate, political party, or political committee (commonly known as a “PAC”). 

Under these limits, an individual can contribute up to:

• $2,500 per election to any candidate’s campaign committee;1

• $30,800 per year to any national political party;

 1 In this context, primaries and general elections are separate “elections.” See 11 C.F.R. 

§ 100.2. Thus, an individual can contribute $2,500 to a candidate for a primary election (even if 

the candidate is unopposed for nomination), and another $2,500 to the candidate for the general 

election, for a total contribution of $5,000 per election cycle.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 8 of 50
2

• $10,000 per year to any state political party; and

• $5,000 per year to any PAC.2

See 2 U.S.C. § 441a(a)(1); FEC, Price Index Adjustments for Contribution and Expenditure 

Limits and Lobbyist Bundling Disclosure Threshold, 76 Fed. Reg. 8368, 8370 (Feb. 14, 2011) 

(“Inflation Index”). 

Second, FECA caps the aggregate amount an individual can contribute to all of these 

entities combined during a two-year election cycle.3 The purpose of this aggregate limit, which 

was enacted in 1974, was to curtail some of the most egregious Watergate-era abuses that 

Congress had traced to individual political contributors wielding undue influence over elected 

officials by virtue of outsized contributions. See, e.g., 120 Cong. Rec. H7814 (Aug. 7, 1974) 

(statement of Rep. Gaydos) (describing bill’s contribution limits, including aggregate limit, as 

“very low” to “eliminate the potential for abuse” and to “eliminate the undue influence of the 

very large contributor to past elections”); id. at H7810 (Aug. 7, 1974) (statement of Rep. 

Brademas) (explaining purpose of provision as “[t]o curtail the influence of excessive political 

contributions by any single person”); id. at H10331 (Oct. 10, 1974) (Statement of Rep. Frenzel) 

(“The $25,000 provision will be the death knell of the ‘fat cat.’ It will take not 1 year, but 160 

years for the Stewart Motts and Clement Stones and other big spenders to give $2 million to all 

Federal candidates . . . .”); see also Buckley v. Valeo, 424 U.S. 1, 27 & n.28 (1976) (noting 

 2 There is no limit on contributions to so-called “super PACs,” i.e., political committees 

that engage only in independent electoral advocacy and do not make contributions to candidates. 

Nor do the aggregate contribution limits apply to contributions to super PACs. See Carey v. 

FEC, 791 F. Supp. 2d 121, 136 (D.D.C. 2011).

3 The aggregate limit does not coincide exactly with election cycles; it governs the twoyear period from January 1 of an odd-numbered year through December 31 of the following 

even-numbered year. 2 U.S.C. § 441a(a)(3).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 9 of 50
3

“deeply disturbing examples surfacing after the 1972 election” of “large contributions . . . given 

to secure a political quid pro quo from current and potential office holders”).4

In Buckley, the Supreme Court affirmed the constitutionality of FECA’s aggregate 

contribution limit. The Court acknowledged that the limit was a “restriction on associational 

freedom” but held that

this quite modest restraint upon protected political activity serves to 

prevent evasion of the [then-$1,000 limit on contributions to candidates] 

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.

Id. at 38. Buckley accordingly upheld the aggregate limit as “a corollary of the basic individual 

contribution [limits],” which the Court had found constitutional earlier in its opinion. Id.

Originally, FECA’s aggregate contribution limit was $25,000 per two-year election cycle. 

FECA Amendments of 1974, Pub. L. No. 93-443, § 101(a), 88 Stat. 1263, 1273 (1974) (first 

codified at 18 U.S.C. § 608(b)(3)).5

 The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81 (“BCRA”), subsequently amended FECA to raise the aggregate limit, 

restructure it, and index it for inflation. See BCRA § 307(b), 116 Stat. 102-103 (codified at 2 

U.S.C. § 441a(a)(3)); BCRA § 307(d), 116 Stat. 103 (codified at 2 U.S.C. § 441a(c)(1)). As so 

amended and indexed, the current aggregate limits on any one person’s contributions during a 

two-year election cycle are:

 4 The bill’s opponents, who questioned the constitutionality and enforceability of its 

contribution limits, agreed: “This provision may be the most significant reform in the [Act]. 

Contribution limitations should restore public confidence by eliminating or reducing public 

suspicion that candidates are being ‘bought’ or influenced by large campaign contributions.” 

H.R. Rep. No. 93-1239, at 115 (1974) (minority view).

5 In 1976, Congress transferred the aggregate limit to its current location at 2 U.S.C. 

§ 441a(a)(3). FECA Amendments of 1976, Pub. L. No. 94-283, § 112, 90 Stat. 475, 486 (1976).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 10 of 50
4

• $46,200 to all candidates; and

• $70,800 to all non-candidate entities, i.e., PACs, national political parties, and 

state political parties; but no more than $46,200 of these non-candidate 

contributions can be to PACs and state political parties.

See 2 U.S.C. § 441a(a)(3); Inflation Index, 76 Fed. Reg. at 8370. Thus, FECA’s aggregate limits 

permit an individual to contribute up to $117,000 to federal candidates, national political parties, 

state political parties, and PACs combined.6 

II. FACTUAL BACKGROUND

The FEC is the agency of the United States government vested with statutory authority 

over the administration, interpretation, and civil enforcement of the FECA and other federal 

campaign finance statutes. The Commission is empowered to “formulate policy” with respect to 

FECA, 2 U.S.C. § 437c(b)(1); “to make, amend, and repeal such rules . . . as are necessary to 

carry out the provisions of [FECA],” 2 U.S.C. §§ 437d(a)(8), 438(a)(8); to issue advisory 

opinions concerning the application of FECA or the Commission’s regulations to proposed 

transactions or activities, 2 U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. 

§ 437g.

Plaintiff Shaun McCutcheon is an individual United States citizen who alleges a desire to 

contribute a total of $151,000 during the current election cycle. Specifically, McCutcheon 

alleges that he would like to contribute $5,000 to one candidate, $2,500 to each of two other 

candidates, and $1,776 to each of 25 additional candidates, for a total of $54,400 in candidate 

 6 Plaintiffs quibble (Pls.’ Mem. in Support of Mot. for Prelim. Inj. (“Pls.’ Mem.”) at 1 n.2, 

2 n.4) with the Commission’s reference to a $117,000 “limit,” noting that there are two separate 

statutory limits subsumed within that figure. Plaintiffs’ characterization of the statute as not 

having a single provision aggregating the limits may be correct, but they identify no error in the 

Commission’s simple arithmetic: A limit of $46,200 in contributions to candidates, plus a limit 

of $70,800 in contributions to all other entities, means that an individual cannot make more than 

$117,000 in total contributions.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 11 of 50
5

contributions. (Compl. ¶ 25.) He also allegedly wishes to contribute $25,000 to the Republican 

National Committee (“RNC”) and each of the other two Republican national party committees 

(id. ¶ 34), in addition to the $20,000 he has already contributed to the Alabama Republican Party 

and the $2,000 he has contributed to a non-party PAC during this election cycle (id. ¶ 36), for a 

total of $97,000 in non-candidate contributions.

Plaintiff RNC is a national party committee of the Republican party. (Compl. ¶ 12.) As 

a national party committee, the RNC can accept up to $30,800 per year in contributions from any 

given individual contributor. See 2 U.S.C. § 441a(a)(1)(B); Inflation Index, 76 Fed. Reg. at 

8370. The RNC alleges that it would like to receive a $25,000 contribution from Mr. 

McCutcheon during this election cycle. (See Compl. ¶¶ 34, 39.) 

The Republican Party operates two national party committees in addition to the RNC: 

The National Republican Senatorial Committee (“NRSC”), and the National Republican 

Congressional Committee (“NRCC”), each of which may also accept contributions from any one 

individual of up to $30,800 per year. (See id. ¶¶ 42, 45-46.) The NRSC and NRCC are not 

parties to this lawsuit, and the RNC alleges that it does not control them. (See Compl. ¶ 43.)

ARGUMENT

This suit challenges the constitutionality of FECA provisions that Buckley held to be 

constitutional — FECA’s aggregate limits on contributions. Plaintiffs openly state their 

intention to ask the Supreme Court to revisit Buckley’s holding, but unless and until that takes 

place, plaintiffs cannot prevail. And even if this Court could reexamine the issues that the 

Supreme Court previously decided, there have been no intervening factual or legal developments 

that cast any doubt on Buckley’s rationale. Because plaintiffs accordingly have no likelihood of 

succeeding on the merits of their claims — and because they also fail to demonstrate that they 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 12 of 50
6

will suffer any cognizable harm while this case is pending — their motion for a preliminary 

injunction should be denied. 

I. STANDARD OF REVIEW

 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief. . . . [It is] never awarded as of right.” 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008); see Cobell v. Norton, 391 

F.3d 251, 258 (D.C. Cir. 2004). To prevail on a motion for a preliminary injunction, a plaintiff 

“must establish”: “that he is likely to succeed on the merits, that he is likely to suffer irreparable 

harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 

injunction is in the public interest.” Winter, 555 U.S. at 20; Mills v. District of Columbia, 571 

F.3d 1304, 1308 (D.C. Cir. 2009). 

Plaintiffs here shoulder a particularly heavy burden because their requested relief “would 

alter, not preserve, the status quo.” Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001). 

The purpose of a preliminary injunction “is merely to preserve the relative positions of the 

parties until a trial on the merits can be held,” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981); Sherley v. Sebelius, 644 F.3d 388, 398 (D.C. Cir. 2011), but plaintiffs here seek to upend 

the status quo by preventing the Commission from enforcing a statutory provision that has been 

in place for almost 40 years. Cf. Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) 

(Rehnquist, C.J., in chambers) (refusing to enjoin enforcement of federal statute in First 

Amendment challenge and noting that “[b]y seeking an injunction, applicants request that I issue 

an order altering the legal status quo”) (emphasis in original). This is particularly inappropriate 

in the pre-election context, where “considerations specific to election cases” weigh even further 

against the issuance of injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 13 of 50
7

(vacating lower court’s injunction against enforcement of election statute and noting potential for 

pre-election injunctions to cause confusion among voting public). 

Thus, plaintiffs can prevail on their motion only by meeting their heavy burden to make a 

clear showing in their favor on all four of the preliminary injunction factors, see Sherley, 644 

F.3d at 392-93 — a showing sufficient to justify bringing to a halt the enforcement of a 

longstanding federal election statute just as the election season approaches its peak.

II. THE COMMISSION IS LIKELY TO PREVAIL ON THE MERITS OF THIS 

CASE BECAUSE THE SUPREME COURT HAS ALREADY DETERMINED 

THAT THE AGGREGATE CONTRIBUTION LIMIT IS CONSTITUTIONAL, 

AND NOTHING HAS UNDERMINED THAT HOLDING

A. Buckley Controls the Standard of Scrutiny and the Outcome of this Case

The Supreme Court’s affirmation of the constitutionality of FECA’s aggregate 

contribution limit in Buckley controls this case in its entirety. Several contribution limits were at 

issue in Buckley, including a $1,000 limit on individual contributions to candidates and the 

$25,000 aggregate limit. See 424 U.S. at 23-38. The Court upheld all of the challenged 

contribution limits.

Analyzing the First Amendment implications of contribution limits in general, the Court 

noted that they restrict “one aspect of the contributor’s freedom of political association,” id.

at 24, but they do not prevent a contributor from speaking. “While contributions may result in 

political expression if spent by a candidate . . . , the transformation of contributions into political 

debate involves speech by someone other than the contributor.” Id. at 21. Accordingly, a 

contribution is not the contributor’s direct speech, but rather a “symbolic act” that provides “a 

general expression of support for the candidate and his views.” Id. And because a contribution 

does not “communicate the underlying basis for the support . . . [t]he quantity of communication 

by the contributor does not increase perceptibly with the size of his contribution.” Id. Thus, 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 14 of 50
8

contribution limits leave contributors free to engage in the “symbolic act of contributing,” while 

in no way inhibiting their ability to conduct other political activity, such as “discuss[ing] 

candidates and issues” or “becom[ing] a member of any political association and [assisting] 

personally in the association’s efforts on behalf of candidates.” Id. at 21-22. 

Recognizing the lack of any direct infringement on speech, the Court declined to apply 

strict scrutiny to FECA’s contribution limits. Instead, the Court held that such limits are 

constitutional if the government meets the less demanding test of “demonstrat[ing] a sufficiently 

important interest and employ[ing] means closely drawn to avoid unnecessary abridgment of 

associational freedoms.” Id. at 25. This “sufficiently important interest” test is equivalent to 

what has subsequently come to be known as intermediate scrutiny. See, e.g., Adarand 

Constructors, Inc. v. Pena, 515 U.S. 200, 220 (1995) (noting that intermediate scrutiny standard 

requires statute to be “substantially related to the achievement of an important governmental 

objective” (internal quotation marks omitted)); see also infra Part II.B.1 (discussing cases 

assessing contribution limits under intermediate scrutiny).

Applying this standard to FECA’s contribution limits, the Court began by upholding the 

then-$1,000 limit on individual contributions to candidates. The Court found that this limit 

furthers two important governmental interests. First, it reduces the opportunity for contributors 

“to secure a political quid pro quo from current and potential office holders” in exchange for 

large contributions. Buckley, 424 U.S. at 26-27. Second, the limit reduces “the appearance of 

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

of large individual financial contributions.” Id. at 27 (emphasis added). “[A]voidance of the 

appearance of improper influence,” the Court held, is “critical if confidence in the system of 

representative Government is not to be eroded to a disastrous extent.” Id. (internal quotation 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 15 of 50
9

marks and alterations omitted). These “weighty interests . . . are sufficient to justify the limited 

effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.” Id. at 29. 

The Court then turned to the $25,000 aggregate contribution limit. The basic function of 

this provision, the Court noted, is to prevent evasion of the limit on individual contributions to 

candidates. Buckley, 424 U.S. at 38. The aggregate limit thwarts such evasion in two ways. 

First, it prevents individual contributors from giving to multiple independent PACs that the 

contributor knows are “likely,” in turn, to contribute to a given candidate. See id. Second, the 

aggregate limit prevents contributors from giving “huge” amounts of money to a political party, 

knowing that the party would then contribute its funds to its candidates. See id. By closing these 

two significant loopholes in the limit on individual contributions to candidates, the Court held, 

the aggregate limit functions as merely “a corollary of the basic individual contribution [limit].” 

Id. Because the Court had already found that limit to be constitutional, the correlative aggregate 

limit was equally constitutional. See id.

In sum, Buckley established four principles that control this case: (1) contribution limits 

are subject to intermediate scrutiny; (2) the government’s interest in preventing corruption and 

the appearance of corruption is sufficient to justify contribution limits; (3) the government’s 

interest in preventing circumvention of contribution limits is an equally important corollary of its 

anti-corruption interest; and (4) the aggregate contribution limit furthers the government’s anticorruption interest by inhibiting circumvention of the limit on individual contributions to 

candidates. 

B. The Aggregate Contribution Limit Remains Closely Related to the 

Government’s Important Interests in Preventing Corruption and the 

Appearance of Corruption

The Supreme Court has repeatedly reaffirmed Buckley’s key holding that Congress’s 

important interest in preventing governmental corruption and its appearance justifies limiting 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 16 of 50
10

contributions that could be used to circumvent the limits on direct contributions to candidates. 

Thus, as discussed below, even if this Court were to accept plaintiffs’ request to disregard 

Buckley’s plain holding, the aggregate limit would still easily survive intermediate scrutiny,

because it is closely drawn to further the government’s interest in preventing corruption and the 

appearance of corruption.

1. The Aggregate Contribution Limit Is a Contribution Limit, Not an 

Expenditure Limit as Plaintiffs Contend

Initiating their assault on Buckley, plaintiffs first argue that the aggregate contribution 

limit is an expenditure limit in disguise and therefore should be subject to strict, not intermediate, 

scrutiny. The assault fails.

Plaintiffs acknowledge, as they must, that Buckley imposed a “lower” level of scrutiny on 

contribution limits and that this Court cannot disregard Buckley’s holding. (See Pls.’ Mem. at 5-

6 & n.5.) Indeed, numerous decisions since Buckley have confirmed and applied that standard. 

See, e.g., McConnell v. FEC, 540 U.S. 93, 136 (2003) (holding that contribution limit is 

constitutional if “closely drawn to match a sufficiently important interest”) (internal quotation 

marks omitted); FEC v. Beaumont, 539 U.S. 146, 162 (2003) (same); Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377, 387-88 (2000) (applying same standard and referring to it as “lesser 

demand”); Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 156 (D.D.C. 2010) (threejudge court) (citing McConnell, Beaumont, and Buckley), aff’d, 130 S. Ct. 3544 (2010). Yet 

plaintiffs nonetheless assert that the aggregate contribution limit should be subject to strict 

scrutiny because they claim that it reduces the amount of money contributors can give political 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 17 of 50
11

candidates and entities to finance their activities, and so it “is effectively a limit on 

expenditures.”7 (See Pls.’ Mem. at 34.)

This is the third time the RNC has made this argument in litigation against the 

Commission, even though the Supreme Court and this Court have already found it devoid of 

merit. The RNC first raised this claim in McConnell, asserting that because BCRA banned the 

national party committees from raising or spending “soft-money” donations in excess of the

contribution limits in 2 U.S.C. § 441a, BCRA’s soft-money ban essentially functioned as an 

expenditure restriction for constitutional purposes. See McConnell, 540 U.S. at 138 (construing 

2 U.S.C. § 441i(a)). The Supreme Court squarely rejected the RNC’s argument, noting that 

contribution limits do not “in any way limit[ ] the total amount of money parties can spend. 

Rather, they simply limit the source and individual amount of donations.” Id. at 138-39 (internal 

citation omitted). 

The RNC then attempted to relitigate McConnell’s holding before a three-judge court in 

this District, which rejected that attempt:

To be sure, every limit on contributions logically reduces the total amount 

that the recipient of the contributions otherwise could spend. But the 

[Supreme] Court has stated that this truism does not mean limits on 

contributions are simultaneously considered limits on expenditures that 

therefore receive strict scrutiny. . . . Plaintiffs contend that [soft-money] 

contribution limits will function as expenditure limits when applied to 

their proposed conduct. But that argument flies in the face of McConnell, 

which squarely held that the level of scrutiny for regulations of 

contributions to candidates and parties does not turn on how the candidate 

or party chooses to spend the money or to structure its finances. 

RNC, 698 F. Supp. 2d at 156 (internal citations omitted) (emphasis added). 

 7 Plaintiffs’ alternative argument that Citizens United v. FEC, 130 S. Ct. 876 (2010), and 

other cases addressing independent expenditures changed the standard of scrutiny for 

contribution limits is addressed infra pp. 17-18. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 18 of 50
12

This Court should again apply the intermediate “important government interests” test to 

FECA’s aggregate contribution limit and summarily reject the RNC’s attempt to take a third bite 

at this apple.8

2. Preventing Circumvention of Contribution Limits Is Critical to 

Furthering the Government’s Important Anti-Corruption Interest

Applying intermediate scrutiny, the Supreme Court has repeatedly upheld contribution 

limits as a constitutional means of furthering the government’s anti-corruption interest by 

preventing circumvention of limits on direct contributions to candidates. Three Supreme Court 

decisions demonstrate precisely why plaintiffs’ challenge to the aggregate contribution limit 

cannot be sustained.

First, in California Medical Association v. FEC, the Court addressed FECA’s limit on 

contributions to PACs. 453 U.S. 182 (1981). Congress had enacted this PAC limit shortly after 

Buckley to “restrict the opportunity to circumvent the . . . limits on contributions to a candidate,”

and to limit the “adverse impact” of PACs that profess to be independent “but are actually a 

means for advancing a candidate’s campaign.” Id. at 198 n.18 (quoting H. R. Conf. Rep. No. 

94-1057, at 57-58 (1976)). The Court reiterated Buckley’s holding that contribution limits do not 

“directly infringe on the ability of contributors to express their own political views.” Id. 

at 194-95; see also id. at 196 (referring to contributions as “speech by proxy”). The Court then 

reaffirmed that contribution limits “serve[ ] the important governmental interests in preventing 

the corruption or appearance of corruption of the political process that might result if such 

 8 This Court also rebuffed the RNC’s argument — which it repeats here (see Pls.’ Mem. 

at 8) — that the Supreme Court’s facial holdings are “inapplicable” in a subsequent as-applied 

constitutional challenge. RNC, 698 F. Supp. 2d at 157 (“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.”).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 19 of 50
13

contributions were not restrained.” Id. at 194-95. In reaching this conclusion, the Court 

recognized that contributors could “easily” evade the then-$1,000 limit on individual 

contributions to candidates — as well as the then-$25,000 aggregate limit — by giving much 

larger amounts to multiple PACs, each of which could then make contributions of up to $5,000 

to the donor’s preferred candidates. Id. at 198. The limit on contributions to PACs was therefore 

constitutional because it “further[ed] the governmental interest in preventing the actual or 

apparent corruption of the political process” by “prevent[ing] circumvention of the very 

limitations on contributions that this Court upheld in Buckley.” Id. at 197-98.

The Court next assessed — and again upheld — the constitutionality of an anticircumvention provision in FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 

431 (2001) (“Colorado II”), where “[a]ll Members of the Court agree[d] that circumvention is a 

valid theory of corruption.” Id. at 456. 

The particular provision at issue in Colorado II limited the amount of money that a 

political party could spend in coordination with its own candidates; such coordinated 

expenditures have long been deemed equivalent to contributions. Id. at 438 (citing 2 U.S.C. 

§ 441a(a)(7)(B)(i)), 464 (“There is no significant functional difference between a party’s 

coordinated expenditure and a direct party contribution to the candidate . . . .”). The Court 

examined in detail the relationship between political parties and candidates, and upheld the limits 

on a party’s coordinated expenditures by relying on an anti-circumvention rationale.

Drawing upon an extensive factual record, the Court concluded 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; see also infra Part II.B.4 (discussing use of contributions to 

political parties to circumvent other limits). Because some individuals contribute to parties to try 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 20 of 50
14

to gain undue influence over elected officials — and because parties can raise funds in larger 

increments than candidates — “[c]oordinated expenditures of money donated to a party are 

tailor-made to undermine contribution limits.” 533 U.S. at 464 (noting that, without limits on 

coordinated expenditures, candidates would have incentive to encourage donors to give large 

amounts to parties to be spent on candidates’ behalf, rather than to solicit smaller contributions to 

candidates’ own campaigns). The Court therefore held that it was “beyond serious doubt [that] 

contribution limits would be eroded if inducement to circumvent them were enhanced by 

declaring parties’ coordinated spending wide open.” Id. at 457. The limit on coordinated 

expenditures was therefore constitutional to further the government’s anti-corruption interest by 

“minimiz[ing] circumvention of contribution limits.” Id. at 465.9

Third, in McConnell the Court assessed multiple BCRA provisions that Congress enacted 

to close major loopholes in FECA’s prior statutory regime. Most of these were associated with 

the phenomenon of “soft money,” which consisted of unlimited donations to state and national 

political parties that were supposedly designated for non-federal purposes but were actually used 

to influence federal elections. See 540 U.S. at 126 (“The solicitation, transfer, and use of soft 

money . . . enabled parties and candidates to circumvent FECA’s limitations on the source and 

amount of contributions in connection with federal elections.”). The Court recognized that “[t]he 

less rigorous standard of review we have applied to contribution limits . . . provides Congress 

with sufficient room to anticipate and respond to concerns about circumvention of regulations 

 9 Plaintiffs’ reliance (Pls.’ Mem. at 13-14) on Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604 (1996) (“Colorado I”) is entirely misplaced: That case 

involved a limit on independent expenditures, which have been constitutionally distinct from 

contributions ever since Buckley. See Colorado II, 533 U.S. at 438-39, 443-45 (explaining 

difference between independent expenditures at issue in Colorado I and coordinated 

expenditures at issue in Colorado II).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 21 of 50
15

designed to protect the integrity of the political process.” Id. at 137 (emphasis added); see also 

id. at 144 (quoting Colorado II). 

Applying this “less rigorous” standard, the Court upheld multiple statutory provisions 

aimed at eliminating or reducing the opportunity for circumvention of FECA’s contribution 

limits via soft money donations. See, e.g., McConnell, 540 U.S. at 134, 184-85 (upholding limit 

on soft-money contributions to state and local entities as preventing circumvention of ban on 

soft-money contributions to national political parties), 165-66 (same), 171-72 (“Given the 

delicate and interconnected regulatory scheme at issue here, any associational burdens imposed 

by the [contribution] restrictions are far outweighed by the need to prevent circumvention of the 

entire scheme.”).10 

Each of FECA’s provisions upheld by the Supreme Court in these decisions hindered 

contributors’ ability to give money to their chosen entities in the amounts of their liking; each of 

the provisions was nonetheless constitutional because it furthered the government’s important 

anti-corruption interest by preventing circumvention of the limit on how much any one person 

can give to any one candidate. “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. See 

McConnell, 540 U.S. at 165-66. Stopping financial contributors from “eviscerating FECA 

clearly qualifies as an important governmental interest.” Id.

 10 McConnell struck down one anti-circumvention statute: a provision that prohibited 

minors from making any contributions, which the government had asserted was necessary to 

prevent parents from making contributions in the names of their children. 540 U.S. at 231-32. 

The flaw that the Court found in this provision was not a limit on Congress’s power to prevent 

circumvention; rather, there simply was no evidence before the Court that the purportedly 

problematic activity had ever occurred, and the government had not explained why a complete 

contribution ban was necessary to address such hypothetical circumvention. See id. at 232 & 

n.3.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 22 of 50
16

Despite the inescapable import of these Supreme Court decisions, plaintiffs argue that

this Court should disregard these dispositive holdings. First, plaintiffs argue that FECA’s 

aggregate contribution limit is a prohibited “prophylaxis on prophylaxis,” citing the Supreme 

Court’s admonition — in a different context — that a “prophylaxis-on-prophylaxis approach . . . 

is not consistent with strict scrutiny.” (Pls.’ Mem. at 15 (quoting FEC v. Wis. Right to Life, Inc., 

551 U.S. 449, 479 (2007)) (emphasis added).) Indeed, plaintiffs rest much of their case on this 

one phrase — which they incant more than 40 times in their argument — even though their 

quotation is both misleading and irrelevant here. Plaintiffs’ ellipsis omits the operative words 

“to regulating expression” and ignores the fact that Wisconsin Right to Life addressed a direct 

ban on certain independent campaign speech, not a limit on contributions. 551 U.S. at 479 

(finding that communications at issue could not be “equate[d] . . . with contributions”). For that 

reason, the Court applied strict scrutiny, something it has never done when considering a 

contribution limit.

Setting aside the incorrect standard of scrutiny that plaintiffs urge, plaintiffs’

characterization of the aggregate contribution limit as a second-level prophylactic measure is 

spurious. They assert that the limit on contributions to candidates is itself a prophylactic 

measure to prevent circumvention of bribery laws (Pls.’ Mem. at 22-23), and so the aggregate 

contribution limit, which prevents circumvention on the candidate-contribution limit, is a

constitutionally impermissible and unnecessary “prophylaxis-on-prophylaxis” against bribery. 

(See Pls.’ Mem. at 22-29.) This argument is completely at odds with Buckley, which noted that 

bribery laws reach “only the most blatant and specific attempts” to corrupt public officials with 

money, 424 U.S. at 27-28, and that “disturbing examples” of “pernicious practices” in the 1972 

election demonstrated more subtle corruption arising from “large contributions,” see id. at 26-27. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 23 of 50
17

Bribery, in other words, is only one subset of the larger category of troubling attempts to corrupt 

officeholders with money that contribution limits seek to redress. See McConnell, 540 U.S. 

at 143 (“Our cases have made clear that the prevention of corruption or its appearance constitutes 

a sufficiently important interest to justify political contribution limits. We have not limited that 

interest to the elimination of cash-for-votes exchanges.”).

The Court in Buckley also held that the government has a separate interest in preventing 

the appearance of corruption — i.e., the “disastrous” erosion of confidence “stemming from 

public awareness of the opportunities for abuse inherent in a regime of large individual financial 

contributions,”11 Buckley, 424 U.S. at 27. Thus, the limit on contributions to candidates is not 

merely a prophylactic rule preventing evasion of bribery statutes; it is a substantive anticorruption measure unto itself. Because the Supreme Court has expressly held that the aggregate 

limit is constitutional as a “corollary” of this individual limit, Buckley, 424 U.S. at 38; see also 

Colorado II, 533 U.S. at 456, there is no merit to plaintiffs’ repeated assertion that the aggregate 

limit is a “prophylaxis-on-prophylaxis.” Cf. FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 

210 (1982) (noting, in case involving contribution limits, that Court will not “second-guess a 

legislative determination as to the need for prophylactic measures where corruption is the evil 

feared”).

Plaintiffs next attempt to avoid dispositive Supreme Court precedent by asserting that the 

Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), limited the scope of the 

government’s anti-corruption interest to contributions that directly extract quid pro quo

exchanges from candidates. (See Pls.’ Mem. at 6, 13-15, 22.) But Citizens United repeatedly 

 11 Plaintiffs imply that Buckley was wrongly decided on this point (see Pls.’ Mem. at 23 

(referring to holding as “problematic”)), but they appear to acknowledge, as they must, that 

preventing the appearance of corruption is a “justifying” interest (id.). 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 24 of 50
18

and explicitly distinguished the government’s interests in limiting contributions, which were not 

at issue in that case, from independent political expenditures, which were. See, e.g., id. at 909 

(“[C]ontribution limits . . . unlike limits on independent expenditures, have been an accepted 

means to prevent quid pro quo corruption”), 910-11 (“The BCRA record establishes that certain 

donations to political parties, called ‘soft money,’ were made to gain access to elected officials. 

This case, however, is about independent expenditures, not soft money.”). 

This Court has accordingly declined to apply the holding of Citizens United to limits on 

contributions to political parties. See RNC, 698 F. Supp. 2d at 153 (“Citizens United did not 

disturb McConnell’s holding with respect to the constitutionality of BCRA’s limits on 

contributions to political parties.”).12 And the Fourth Circuit recently held — agreeing with two 

other Circuits — that Citizens United “preserved” the government’s anti-corruption and anticircumvention interests in regulation of contributions. United States v. Danielczyk, No. 11-4667, 

--- F.3d ---, 2012 WL 2445040, at *5 (4th Cir. June 28, 2012) (citing Ognibene v. Parkes, 671 

F.3d 174, 195 n.21 (2d Cir. 2011), and Thalheimer v. City of San Diego, 645 F.3d 1109, 1125 

(9th Cir. 2011)). Thus, neither Citizens United nor the subsequent cases applying it provide any 

support for plaintiffs’ attempt to narrow the scope of the government’s anti-corruption interest in 

the contribution context.13

 12 Plaintiffs rely (Pls.’ Mem. at 6) on this Court’s decision in Carey, but like Citizens 

United, Carey involved the financing of independent expenditures. See Carey, 791 F. Supp. 2d 

at 129 (quoting portion of EMILY’s List v. FEC, 581 F.3d 1, 5-8 (D.C. Cir. 2009), that 

distinguished independent expenditures from contributions). 

13 Plaintiffs’ assertion (Pls.’ Mem. at 30) that the aggregate contribution limit constitutes an 

impermissible attempt to equalize political speech — or “level the playing field” — is flawed. 

Buckley struck down expenditure limits as unconstitutional speech-equalization measures. See

424 U.S. at 48-49. But Buckley explicitly noted that contribution limits are not speechequalizing provisions because they do 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.” 424 U.S. at 26 n.26.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 25 of 50
19

3. Striking Down the Aggregate Limit Would Allow Massive 

Contributions and Undermine FECA’s Contribution Limits

Plaintiffs next challenge the continued vitality of Buckley and its progeny by arguing that 

the rationale underlying the Court’s holding no longer exists. Plaintiffs argue that Buckley

upheld FECA’s aggregate contribution limit only for the purpose of preventing the opportunity 

for “massive” or “huge” contributions, and that such large contributions would be impossible 

under the current statutory regime, even without the aggregate limit, due to the limits on 

individual contributions to each kind of political entity. (Pls.’ Mem. at 10, 19-22, 28-29.)14 

Plaintiffs correctly note that the individual limits are currently $30,800 per year to each national 

political party committee, and lesser amounts to other entities. (Id. at 20; see also supra pp. 1-2.) 

But plaintiffs then assert, without any evidence or explanation, that “[n]one of these is ‘massive,’

in a year or a biennium.” (Pls.’ Mem. at 20.) 

This assertion is both wrong and misleading. It is wrong because $30,800 represents 

approximately 60% of the median annual household income in the United States, see United 

States Census Bureau, State & Country Quick Facts, 

http://quickfacts.census.gov/qfd/states/00000.html (last visited July 8, 2012), and almost 50% of 

the average household’s net worth, see Federal Reserve, Balance Sheet of Households and 

Nonprofit Organizations, http://www.federalreserve.gov/releases/z1/current/z1r-5.pdf (June 7, 

2012). A contribution that exceeds what the median American household earns (gross) in six 

months is indeed “massive” — both actually and in appearance. Because political parties and 

candidates have a tiny pool of people from whom to seek such contributions, those few potential 

contributors hold substantial leverage. And from that leverage arises the precise potential for 

 14 Plaintiffs’ related arguments that the aggregate limits are simply not high enough, even 

when indexed for inflation, are addressed infra Part II.C. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 26 of 50
20

corruption that led Buckley to uphold FECA’s contribution limits. See 424 U.S. at 26-27 (noting 

that large contributions have potential to “secure a political quid pro quo” because “[u]nder a 

system of private financing of elections, a candidate lacking immense personal or family wealth 

must depend on financial contributions from others to provide the resources necessary to conduct 

a successful campaign”); see also McConnell, 540 U.S. at 119 n.5 (“‘The record before Congress 

was replete with specific examples of improper attempts to obtain governmental favor in return 

for large campaign contributions.’”) (quoting Buckley v. Valeo, 519 F.2d 821, 839 n.37 (D.C. 

Cir. 1975) (en banc)).

Furthermore, plaintiffs’ assertion that massive contributions would not be permitted even 

if plaintiffs were to prevail here is incorrect. In the absence of the aggregate limit, a single donor 

who wanted to support just one political party and its candidates could contribute the following 

during a single two-year election cycle under the current limits:

• $30,800 per year to each of the three national party committees = $184,800

• $10,000 per year to each of the 50 states’ political parties = $1,000,000

• $2,500 per election (primary and general elections) to each of the party’s 

33 Senate candidates = $165,000

• $2,500 per election (primary and general elections) to each of the party’s 

435 candidates for the House of Representatives = $2,175,000

• Total contributions in one election cycle = $3,524,800

Plaintiffs do not and cannot seriously contend that $3.5 million — or 70 times the annual 

income of the median American household — in contributions to a single political party and its 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 27 of 50
21

candidates is anything but “massive.”15 And this figure does not even include contributions to a 

potentially unlimited number of PACs, at $5,000 per PAC per year.

Thus, in the absence of the aggregate limit, individuals with the means to make such 

outsized contributions could offer — and be solicited — to finance millions of dollars’ worth of 

campaign activities per election cycle. That amount of money could easily exert a corrupting 

influence on the democratic system, see McConnell, 540 U.S. at 129-31 (discussing findings of 

S. Rep. No. 105-167 (1998)), and it would certainly present the appearance of corruption that is 

“inherent in a regime of large individual financial contributions,” see Buckley, 424 U.S. at 27. 

The prevention of such “huge” contributions thus falls squarely within the government’s anticorruption and anti-circumvention interests. See Buckley, 424 U.S. at 38.

Finally, plaintiffs argue that even if an individual donor could give large contributions to 

a variety of political parties and PACs, those recipients could not be counted on to help 

circumvent the individual contribution limit by giving the contributor’s money to candidates the 

contributor would want to support. (Pls.’ Mem. at 23-26.) Plaintiffs are wrong as a matter of 

fact. It is often quite simple for a contributor to know which candidates will receive 

contributions from political parties and PACs; indeed, many PACs simply list the candidates on 

their websites. E.g., Club for Growth, Club for Growth PAC Endorsed Candidates, 

http://www.clubforgrowth.org/endorsedcandidates/ (last visited July 8, 2012); NARAL ProChoice America, Press Release, http://www.prochoiceamerica.org/elections/elections-pressreleases/2012/pr04032012_pac-endorsements.html (April 3, 2012) (identifying 44 federal 

candidates receiving contributions from PAC). And the Supreme Court has rejected the notion 

 15 Plaintiffs’ suggestion that the maximum aggregate contribution would be approximately 

$230,000 per election cycle (see Pls.’ Mem. at 29) fails to account for contributions that could be 

made to candidates and state parties if the aggregate limit were not in place. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 28 of 50
22

that anti-earmarking rules alone can effectively prevent contributors from using political parties 

to circumvent contribution limits. Colorado II, 533 U.S. at 459 (describing “tally system,”

though which parties helped channel funds from contributors to candidates while avoiding 

formal earmarking). 

As the Supreme Court held in Colorado II, “[t]o treat the earmarking provision as the 

outer limit of acceptable tailoring would disarm any serious effort to limit the corrosive effects of 

. . . ‘understandings’ regarding what donors give what amounts to the party, which candidates are 

to receive what funds from the party, and what interests particular donors are seeking to 

promote.” Id. at 462 (internal citation and quotation marks omitted).

16 Moreover, plaintiffs’

argument is foreclosed by Buckley, which noted the likelihood of circumvention “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 (emphasis added). 

Plaintiffs’ only response is to assert that Buckley was wrongly decided on this point. (See Pls.’

Mem. at 25 (arguing that Buckley’s holding was not supported by evidence).)17 And that 

argument is not sustainable here.

 16 Plaintiffs’ related argument (Pls.’ Mem. at 26-27) that contributions to an entity must be 

analyzed in pro rata proportion to the entity’s total income is similarly irreconcilable with 

Colorado II. See 533 U.S. at 461 (rejecting political party plaintiff’s argument that the 

contributions it received were not large enough to carry “corrupting momentum . . . through the 

party conduit”). 

17 Plaintiffs assert that, after Citizens United, contributors can circumvent contribution 

limits by financing independent expenditures through “super PACs,” and so the Court should 

reexamine whether the contribution limits are now so ineffective as to call their constitutionality 

into question. (Pls.’ Mem. at 16 & n.10.) But the aggregate limit has never applied to 

independent expenditures. See Buckley, 424 U.S. at 39-51 (striking down limit on independent 

expenditures). In any event, contribution limits are not rendered unconstitutional merely because 

there are other ways for donors to spend large amounts of money on political purposes. See

Mariani v. United States, 212 F.3d 761, 773-76 (3d Cir. 2000) (en banc) (rejecting pre-BCRA 

argument that limit on contributions was unconstitutional because it could be circumvented by 

soft-money donations); RNC, 698 F. Supp. 2d at 160 n.5 (“[O]utside groups —unlike candidates 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 29 of 50
23

4. Contributors Use Contributions to National Political Parties to Exert 

Actual or Apparently Corrupt Influence over Federal Officeholders

In addition to the foregoing challenges to the aggregate limit as a whole, plaintiffs also 

argue that the governmental interests underlying the aggregate limit are insufficient to justify its 

independent application to each type of political entity — that is, national political parties, PACs, 

and candidates. Plaintiffs’ argument is off the mark. The aggregate limit, as applied to each

entity, furthers the government’s anti-corruption interests.

As to national political parties, plaintiffs’ argument is completely untenable in light of 

Colorado II and McConnell, both of which recognized the role such parties can play in 

circumventing individual contribution limits. Colorado II upheld a limit on parties’ coordinated 

expenditures on the grounds 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; see also supra

pp. 13-14. Large contributors seeking to create such obligations “test[ed] the limits” by 

“giv[ing] to the party with the tacit understanding that the favored candidate will benefit.” Id. at 

457-58. Large donors did not need to earmark their donations; the party simply engaged in 

“informal bookkeeping” to track which contributors funds were intended to assist which 

candidates. Id. at 459. In light of these practices that effectively channeled more money from 

contributors to candidates than the individual contribution limits permitted, the Court held that 

the limit on parties’ coordinated expenditures furthered the government’s important anticorruption interest by “minimiz[ing] circumvention of contribution limits.” Id. at 465.

 

and political parties — may receive unlimited donations both to advocate in favor of federal 

candidates and to sponsor issue ads. We recognize the RNC’s concern about this disparity . . . . 

But that is an argument for the Supreme Court or Congress. As a lower court, it is not our place 

to reassess the constitutionality of limits on contributions to political parties that the Supreme 

Court has upheld.”).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 30 of 50
24

McConnell upheld BCRA’s ban on soft-money contributions to national political parties 

on substantially similar grounds: “[C]ontributions to a federal candidate’s party in aid of that 

candidate’s campaign threaten to create — no less than would a direct contribution to the 

candidate — a sense of obligation.” 540 U.S. at 144-45 (citing Buckley’s upholding of FECA’s 

aggregate contribution limit). That corruptive potential “is particularly true of contributions to 

national parties, with which federal candidates and officeholders enjoy a special relationship and 

unity of interest.” Id. Indeed, this “unity of interest” is so strong that candidates would ask 

donors who reached the limit on direct candidate contributions to give more money to the party, 

or even to outside groups that were known to support the party. See id. at 125. Such donations 

and solicitations “enabled parties and candidates to circumvent FECA’s limitations,” id. at 126: 

“[C]andidates and donors alike . . . exploited the . . . loophole, the former to increase their 

prospects of election and the latter to create debt on the part of officeholders, with the national 

parties serving as willing intermediaries.” Id. at 146. This interaction resulted in two forms of 

corruption: “undue influence on an officeholder’s judgment, and the appearance of such 

influence.” Id. at 150 (quoting Colorado II, 553 U.S. at 441).18 McConnell therefore held that 

the government’s important interests in preventing actual and apparent corruption were sufficient 

to justify the soft-money contribution ban. Id. at 156.19 

 18 Although the Court need not address this question to deny plaintiffs’ preliminary 

injunction motion, plaintiffs are incorrect to assert that a political party is incapable of leveraging 

its financial resources to exert corrupt influence over its own candidates. (See Pls.’ Mem. at 

13-14.) Plaintiffs cite dicta from two plurality opinions in Colorado I to support this assertion, 

but Colorado II explicitly noted that the Court had not reached the issue. 533 U.S. at 456 n.18. 

19 Plaintiffs’ assertion that “Congress saw political parties as posing little circumvention 

risk” (Pls.’ Mem. 17 n.11) is false. See S. Rep. No. 105-167 (1998) (10,000 page Senate report 

including investigation of political party fundraising abuses); see also McConnell, 540 U.S. at 

129-32 (discussing Senate report and noting that it served as basis for many of BCRA’s reforms). 

Congress granted political parties higher limits on incoming contributions because parties’ 

diverse activities on behalf of candidates nationwide “play an important role in federal 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 31 of 50
25

The limit on aggregate contributions to national political parties serves the same anticorruption and anti-circumvention functions as the limits upheld in Buckley, Colorado II, and 

McConnell. And these cases conclusively shut the door on plaintiffs’ claim that the 

government’s “anticorruption interest does not apply to contributions to national party 

committees,” but only to contributions to candidates. (Pls.’ Mem. at 13.) Indeed, McConnell

explicitly rejected just that argument. 540 U.S. at 152 n.48.20 

Plaintiffs unconvincingly attempt to distinguish Colorado II and McConnell on a number 

of grounds. Most specious is the claim that Citizens United redefined “corruption” in the context 

of political parties, i.e., by “reject[ing] the notion that influence on, access to, or gratitude from 

candidates was cognizable as corruption or circumvention.” (Pls.’ Mem. at 22, 35.) Plaintiffs 

present this assertion as if it were a matter of first impression, but it is not: Just two years ago, 

the RNC raised this exact argument to a three-judge court in this District and it was rejected. 

RNC, 698 F. Supp. 2d at 158 (“The RNC contends that Citizens United undermines any theory of 

limiting contributions to political parties that might have rested on the idea that large 

contributions to parties create gratitude from, facilitate access to, or generate influence over 

federal officeholders and candidates.”). The Court concluded that RNC’s argument was 

precluded by McConnell’s findings that parties and candidates are so inextricably intertwined 

that candidates “may value contributions to their national parties — regardless of how those 

contributions ultimately may be used — in much the same way they value contributions to their 

 

elections,” cf. FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 41 (1981) (noting 

role of parties in FECA’s “general scheme”), not because they pose less risk of corruption than 

PACs. 

20 Plaintiffs again rely on Carey, but that case involved a non-connected PAC that sought to 

receive unlimited contributions to make independent expenditures, and the court distinguished 

that plaintiff from a political party. See 791 F. Supp. 2d at 131 (“[N]on-connected [entities] are 

not the same as political parties and do not cause the same concerns of quid pro quo money-foraccess.”). 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 32 of 50
26

own campaigns.” Id. at 159. Thus, because “large . . . contributions to national parties are likely 

to create actual or apparent indebtedness on the part of federal officeholders,” id. at 159 (citing 

McConnell, 540 U.S. at 155) — and because Citizens United “did not disturb McConnell’s 

holding” on this issue, id. at 153 (citing Citizens United, 130 S. Ct. at 910-11) — this Court 

found that it could not rule in the RNC’s favor without impermissibly “get[ting] ahead of the 

Supreme Court.” Id. at 160.

The RNC appealed this decision directly to the Supreme Court, which, less than six 

months after Citizens United, summarily affirmed this Court’s judgment. 130 S. Ct. 3544 

(2010). Lower courts are bound by such summary affirmances. Mandel v. Bradley, 432 U.S. 

173, 176 (1977) (per curiam). Yet plaintiffs’ brief makes no mention whatsoever of this Court’s

prior opinion, much less the Supreme Court’s summary affirmance. The RNC’s arguments in 

this action — just as in the prior case that they fail to cite — are merely “another way of asking 

[this Court] to overrule McConnell’s holding . . . . As a lower court, we of course have no 

authority to do so.” RNC, 698 F. Supp. 2d at 157.

Colorado II and McConnell also belie plaintiffs’ argument that Buckley upheld FECA’s 

aggregate contribution limit only because there was no other limit on contributions to political 

parties at the time. Plaintiffs contend that once Congress enacted such a limit on political parties

in 1976, after the Buckley decision, the rationale for applying the aggregate limit to contributions 

to political parties was vitiated. (See Pls.’ Mem. at 8-11.) But Buckley upheld the aggregate 

limit in part to prevent contributors from using parties to circumvent the limit on direct 

contributions to candidates. 424 U.S. at 38. In 1974, the limit on contributions to candidates 

was $1,000, and there was no separate limit on contributions to parties; today, those limits are 

$2,500 per election for candidates and $30,800 per year for political parties. Because the limit 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 33 of 50
27

on contributions to parties is (and has always been) much higher than the limit on direct 

contributions to candidates, political parties remain attractive investment opportunities for 

contributors who “seek to produce obligated officeholders” by circumventing the direct limit. 

See Colorado II, 533 U.S. at 452. Indeed, as discussed above, that is precisely why the Court 

upheld anti-circumvention measures directed at parties in Colorado II and McConnell — both of 

which post-date Congress’s enactment of the limit on individual contributions to parties.

In sum, without the aggregate limit, an individual contributor would be able to give 

$184,800 to the national political party committees for a single party in one election cycle, plus 

another $1 million to that party’s state or local political party committees. The latter amount 

would be legally transferrable in its entirety to the national party, 2 U.S.C. § 441a(a)(4), and 

history shows that national and state parties exchange funds in whatever way is most 

advantageous to the party’s candidates at the time. See McConnell, 540 U.S. at 124 (noting 

transfers from national to state parties); id. at 161 (“BCRA’s restrictions on national committee 

activity would rapidly become ineffective if state and local committees remained available as a 

conduit . . . .”); FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 30 (1981) 

(describing system of state parties giving national parties control over state party’s spending). 

These figures so dwarf the $5,000 that a contributor can give to a candidate that the “quite 

modest restraint” of the aggregate limit remains necessary “to prevent evasion of the $[5],000 

contribution limitation by a person who might otherwise contribute massive amounts of money 

to a particular candidate through . . . huge contributions to the candidate’s political party.” 

Buckley, 424 U.S. at 38.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 34 of 50
28

5. Non-Party Political Committees Continue to Proliferate and Provide 

Means of Circumventing the Contribution Limits

Turning to the second type of political entities — non-party political committees — it is 

not clear whether plaintiffs specifically seek to enjoin the Commission from enforcing the 

aggregate limit on contributions to PACs, as McCutcheon has not alleged any desire to make 

contributions in excess of that limit during the pendency of this action, and plaintiffs present 

almost no independent legal argument regarding that portion of FECA’s aggregate contribution 

limits (see Pls.’ Mem. at 31).21 Nonetheless, to the extent plaintiffs do seek such an injunction, it 

is also foreclosed by Buckley.

Buckley upheld the constitutionality of the aggregate contribution limit “to prevent 

evasion of the . . . limitation [on contributions to candidates] 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.” 424 U.S. at 38

(emphasis added); see also Cal. Med., 453 U.S. at 198 (discussing potential for PAC contributors 

to circumvent limit on direct candidate contributions). In light of that plain and unambiguous 

holding, plaintiffs simply cannot demonstrate a likelihood of success on the merits of any 

challenge to the aggregate limit on contributions to PACs.

Plaintiffs’ argument (Pls.’ Mem. at 8-12, 17-19), which is essentially identical to their

argument concerning national political parties discussed above, is that Buckley’s rationale ceased 

to apply in 1976. At that time, Congress enacted limits on contributions to PACs, as well as 

other provisions designed to inhibit the “adverse impact” of PACs that “appear to be separate 

 21 Plaintiffs’ cursory assertion (Pls.’ Mem. at 31-32) that the aggregate limit on 

contributions to state parties should be struck down appears to rest on a non-severability 

argument. But see BCRA § 401, 116 Stat. 112 (“If any provision of this Act . . . is held to be 

unconstitutional, the remainder of this Act and . . . the application of the [Act] to any person or 

circumstance[ ] shall not be affected by the holding.”). Because plaintiffs are unlikely to succeed 

on the merits of their other claims, their derivative non-severability argument also lacks merit.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 35 of 50
29

entities pursuing their own ends, but are actually a means for advancing a candidate’s 

campaign.” Cal. Med., 453 U.S. at 198 n.18 (quoting H. R. Rep. No. 94-1057, at 57-58 (1976)

(Conf. Rep.)); see also Pls.’ Mem. at 17-18 (noting FEC regulations limiting ability of single 

individual or entity to take advantage of multiple contribution limits by controlling multiple 

PACs). Plaintiffs are undoubtedly correct that there are more legal barriers to the proliferation of 

affiliated PACs today than there were at the time of Buckley. But that in no way undercuts 

Buckley’s reasoning, which was based on a contributor’s ability to circumvent the limit on his 

direct contributions to a candidate by contributing to multiple PACs “likely to contribute to that 

candidate.” 424 U.S. at 38. As noted supra p. 21, the internet makes identifying such PACs a 

substantially easier endeavor today than it was in 1974. And combined with the explosion in the 

sheer number of PACs — from 600 in 1974 to more than 4,600 today22 — there can be no 

serious doubt that a contributor determined to circumvent the direct contribution limit could 

successfully find a sufficient number of PACs likely to contribute to his preferred candidate. 

For example, if a contributor were to give the maximum contribution of $5,000 to each of 

100 PACs, and just one-quarter of those PACs then contributed $5,000 to the contributor’s 

desired candidate, that would represent $125,000 in contributions to the candidate — a massive 

circumvention of FECA’s current $2,500 per-election limit.23 The aggregate limit on 

 22 FEC, PAC Count — 1974 to Present, 

http://www.fec.gov/press/summaries/2011/2011paccount.shtml (last updated Jan. 2012).

23 Plaintiffs argue that the aggregate limit “is underinclusive because PACs have no biennial 

aggregate limit.” (Pls.’ Mem. at 30 n.20.) But the reason “multicandidate political committees” 

(i.e., PACs) exist is to provide a mechanism for multiple individuals to pool their money to 

support multiple candidates. See 2 U.S.C. § 441a(a)(4) (providing that PAC is considered 

“multicandidate” only after it “has received contributions from more than 50 persons, and . . . has 

made contributions to 5 or more candidates for Federal office”). There would be little sense in 

Congress creating an entity to take in, e.g., $255,000 per year ($5,000 from each of 51 persons) 

if that entity were then limited to contributing a total of $46,200 biennially.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 36 of 50
30

contributions to PACs ameliorates this problem by limiting the number of PACs the contributor 

can attempt to use as conduits. 

6. One Individual Contributing Millions of Dollars Directly to Political 

Candidates Would Create, at a Minimum, the Appearance of 

Corruption

Finally, plaintiffs’ challenge to the aggregate contribution limits as applied to the third 

category at issue — individual candidates — must fail. Although Congress has raised both the 

individual and aggregate limits and indexed them for inflation since Buckley originally upheld 

them, the basic structure of those contribution limits has remained unchanged since 1974. 

Plaintiffs cannot, therefore, demonstrate a likelihood of success on the merits of their claim that 

the aggregate limit on candidate contributions is unconstitutional.

In the absence of that limit, a single donor wishing to support one political party’s federal 

candidates could directly contribute millions of dollars to those candidates in each election cycle 

— approximately $2.3 million in 2011-2012. See supra p. 20. Viewed piecemeal, each 

individual contribution would be capped at $2,500 per election ($5,000 per election cycle). But 

if a contributor such as McCutcheon were to give millions of dollars to finance a parties’

candidates, this aggregate contribution would be functionally indistinguishable from the milliondollar soft-money donations that, before the passage of BCRA, donors gave to parties to help 

their candidates — donations that led to well-documented instances of actual and apparent 

corruption. See McConnell, 540 U.S. at 129-31, 145-152. 

Whatever undue influence soft-money donors acquired by giving hundreds of thousands

of dollars to parties, contributors who give the same amount of money directly to the parties’

candidates would be able to acquire the same influence. And because so few contributors would 

be able to provide this new level of maximum funding, those contributors would be able to 

extract concessions in exchange for agreeing to spread their largesse among the party’s 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 37 of 50
31

candidates. Preventing these schemes — all of which occurred before the soft-money ban and 

would likely happen again if plaintiffs were to prevail — is at the heart of the government’s anticorruption interest. Cf. McConnell, 540 U.S. at 165 (“Having been taught the hard lesson of 

circumvention by the entire history of campaign finance regulation, Congress knew that softmoney donors would react to [a contribution ban] by scrambling to find another way to purchase 

influence.”). And even apart from actual corruption, millions of dollars in contributions from a 

single individual present the appearance of corruption that must be avoided “if confidence in the 

system of representative Government is not to be eroded to a disastrous extent.” See Buckley, 

424 U.S. at 27 (internal quotation marks omitted) (upholding $1,000 contribution limit).24

Apart from meritless objections to the precise dollar-amount of the limit, which are 

addressed infra Part II.C, plaintiffs’ other main challenge to the aggregate limit on contributions 

to candidates is that it “is the functional equivalent of a ban on an individual associating with the 

candidates of his choosing because it has the effect of prohibiting contributions to ‘too many’

candidates.” (Pls.’ Mem. at 34 (emphasis added).) Even if that assertion were true, it would 

have been just as true of the limit upheld in Buckley, and so it cannot overcome that precedent. 

But plaintiffs’ claim is not even remotely true: FECA’s aggregate limit of $46,200 in 

contributions to candidates does not place any restriction on the number of candidates to whom 

 24 A contributor would not need to contribute to hundreds of candidates to raise the specter 

of corruption. For example, there are 29 majority members of the House Committee on 

Appropriations. See Committee on Appropriations, Full Committee Members, 

http://appropriations.house.gov/about/members/ (last visited July 8, 2012). Without the 

aggregate limit, an individual contributor seeking a favorable appropriation could give a total of 

$145,000 to these Representatives. If the contributor then received his desired appropriation, the 

public could reasonably believe that the committee had made its decision “not on the merits or 

the desires of [the Representatives’] constituencies, but according to the wishes of those who 

have made large financial contributions.” McConnell, 540 U.S. at 153. “Who, after all, can 

seriously contend that a $100,000 donation does not alter the way one thinks about — and quite 

possibly votes on — an issue?” Id. at 149 (quoting testimony of former Sen. Alan Simpson).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 38 of 50
32

McCutcheon (or anyone else) can contribute. He can quite literally contribute to every single 

candidate in every single federal election in the United States. McCutcheon is limited only in the 

amount he can give to each of those candidates. That is an exceedingly weak constitutional 

burden, for contributions implicate the First Amendment not as acts of direct speech but as

symbolic acts associating the contributor with candidates; the amount of the contribution is 

largely irrelevant to the act of association. See Buckley, 424 U.S. at 21 (“[T]he quantity of 

communication by the contributor does not increase perceptibly with the size of his contribution 

. . . .”); McConnell, 540 U.S. at 135 (quoting Buckley).

Nothing could illustrate this established First Amendment principle better than plaintiffs’

own Complaint. McCutcheon allegedly intends to give the symbolic figure of $1,776 to each of 

25 candidates (plus a total $7,500 to three others), which would exceed the aggregate limit. But 

McCutcheon could lawfully contribute the equally symbolic figure of $17.76 to all 468 

Republican congressional candidates in the nation. Alternatively, he could spend $1,776 (or, for 

that matter, $1,776,000) on independent expenditures for every candidate. Or he could choose

another way to participate in the campaigns of his choosing, such as “becom[ing] a member of 

any political association and [assisting] personally in the association’s efforts on behalf of 

candidates.” Buckley, 424 U.S. at 21-22. The aggregate limit minimizes the actual and apparent 

corruption arising from large contributions while still permitting contributors to associate 

themselves with all the candidates of their choosing and to engage in any of these other First 

Amendment activities. See id.

Finally, plaintiffs’ blanket assertion (see Pls.’ Mem. at 35-36) that candidates cannot 

serve as conduits for circumventing the individual contribution limits to other candidates has no 

basis in fact. Just as a contributor can give $5,000 to a number of PACs that in turn give to one 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 39 of 50
33

candidate, the contributor can give $5,000 to a number of candidates who in turn give to one 

candidate. Plaintiffs do not appear to dispute that these transfers take place, as, indeed, they do: 

Members in “safe” districts routinely contribute to the members of their party facing more 

difficult elections. See, e.g., Raymond Hernandez, Money From Colleagues Buoys Rangel 

Campaign, N.Y. Times (May 28, 2012), http://www.nytimes.com/2012/05/29/nyregion/rangelscampaign-is-helped-by-colleagues-contributions.html (May 28, 2012). 

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

to collect and spend funds in support of his colleagues — exacerbates this conduit potential. 

There are hundreds of leadership PACs, see FEC, 2012 Leadership PACs and Sponsors, 

http://www.fec.gov/data/Leadership.do?format=html&election_yr=2012 (last visited July 7, 

2012), and they give tens of millions of dollars to federal candidates. See OpenSecrets.org, 

Leadership PACs, http://www.opensecrets.org/pacs/industry.php?txt=Q03&cycle=2012 (last 

visited July 8, 2012). Leadership PACs are ready-made conduits, allowing a contributor to 

ingratiate himself simultaneously with the officeholder who sponsors the PAC and the candidates 

who receive contributions from it.25 Cf. McConnell, 540 U.S. at 174-178 (upholding ban on 

officeholder solicitations for tax-exempt entities in light of evidence that officeholders 

established such entities to engage in political spending to benefit themselves and their 

colleagues).

 25 Plaintiffs speculate that the candidates serving as conduits and sponsors of leadership 

PACs take credit for these contributions themselves, rather than crediting the underlying donor. 

(Pls.’ Mem. at 40.) The discovery process in this case may help determine the accuracy of that 

speculation, but it is ultimately beside the point, as multi-million-dollar contributors (who would 

proliferate in the absence of the aggregate limit) are not hesitant to publicize their generosity. 

See McConnell, 540 U.S. at 146-47 (“[F]or a Member [of Congress] not to know the identities of 

[large] donors, he or she must actively avoid such knowledge as it is provided by . . . the donors 

themselves.”) (internal quotation marks omitted).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 40 of 50
34

Because of the aggregate limit, such conduit activity is limited to $46,200 per contributor 

per election cycle — the amount that Congress has determined to present a sufficiently low risk 

of corruption.26 Without the aggregate limit, officeholders using their leadership PACs or their 

own campaign committees could funnel millions of dollars from a contributor to candidates in 

need. For all the reasons discussed above, the government has an important interest in limiting 

the actual and apparent corruption inherent in such a system.

C. The Aggregate Contribution Limit Does Not Deprive National 

Political Parties of the Ability to Raise Enough Money to Engage 

in Effective Advocacy

Plaintiffs’ final challenge is that FECA’s aggregate limit — in general and in its specific 

application to each type of political entity — is so low as to violate the First Amendment. 

Plaintiffs cannot possibly prevail on the merits on their argument, which ignores outright the 

legal standard for assessing such claims, and which is unsustainable as a matter of indisputable 

fact.

The general rule, established in Buckley, is that courts do not second-guess Congress’s 

decision regarding the exact dollar figure at which to set a contribution limit:

[Plaintiffs argue] that the $1,000 restriction is unrealistically low because 

much more than that amount would still not be enough to enable an 

unscrupulous contributor to exercise improper influence over a candidate 

or officeholder, especially in campaigns for statewide or national office. 

. . . Congress’ failure to engage in such fine tuning does not invalidate the 

legislation. . . . [I]f it is satisfied that some limit on contributions is 

 26 Plaintiffs incorrectly assume that the individual contribution limits “eliminate[ ] any 

cognizable circumvention risk” (Pls.’ Mem. at 21 (emphasis added)), such that no matter how 

many contributions an individual makes within those limits, there is no risk of corruption (id. 

(“Zero multiplied by anything equals zero.”).) But neither Congress nor the courts have ever 

found that the individual limits eliminate corruption — or even that they are intended to do so. 

Rather, the 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 (“[T]he Act’s primary purpose [is] to limit the actuality and appearance of 

corruption . . . .”) (emphasis added); cf. id. at 30 (noting that courts do not “probe” whether 

Congress has set limits at exact dollar amount that would entirely prevent corruption).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 41 of 50
35

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

might not serve as well as $1,000. Such distinctions in degree become 

significant only when they can be said to amount to differences in kind.

Buckley, 424 U.S. at 30 (internal quotation marks omitted) (emphasis added). The Supreme 

Court has repeatedly reaffirmed this holding. See Randall v. Sorrell, 548 U.S. 230, 248 (2006) 

(Breyer, J., plurality op.) (“In practice, the legislature is better equipped to make such empirical 

judgments, as legislators have particular expertise in matters related to the costs and nature of 

running for office. Thus ordinarily we have deferred to the legislature’s determination of such 

matters.”) (internal quotation marks and citation omitted); Colorado II, 533 U.S. at 446 (“[T]he 

dollar amount of the limit need not be ‘fine tun[ed]’”) (quoting Shrink Missouri, alterations in 

original); cf. 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.”) (citing Randall, Shrink Missouri, and Buckley).27

As the Supreme Court has held, a contribution limit contravenes the First Amendment 

only if the limit “is so low as to ‘preven[t] candidates and political committees from amassing 

the resources necessary for effective advocacy.’” McConnell, 540 U.S. at 145 (quoting Buckley, 

424 U.S. at 21); see Shrink Mo., 528 U.S. at 397 (referring to “effective advocacy” test as setting 

“outer limits of contribution regulation”). As Shrink Missouri explained:

We ask[ ], 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. Such being the test, the issue . . . cannot be 

truncated to a narrow question about the power of a dollar, but must go to 

the power to mount a campaign with all the dollars likely to be 

forthcoming.

 27 Plaintiffs do not actively dispute this standard; they simply ask the Court to disregard it. 

(See Pls.’ Mem. at 37 (“While prior holdings of the Supreme Court have extended deference to 

Congressional judgment on contribution limits, those holdings should be revisited . . . .”).)

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 42 of 50
36

528 U.S. at 397. The Court then examined the factual record in that case and found no evidence 

(except the plaintiff candidate’s own allegations) that contribution limits ranging from $275 to 

$1,075 had inhibited candidates from “amass[ing] impressive war chests” or otherwise raising 

sufficient funds to run effective campaigns. Id. at 395-97 (internal quotation marks omitted).

Plaintiffs here complain that the aggregate contribution limit is too low in two respects.28 

First, plaintiffs assert that, when inflation is taken into account, the current aggregate limit is in 

several respects more restrictive than the $25,000 aggregate limit upheld in Buckley. (See Pls.’

Mem. at 38-39.) Yet, as plaintiffs acknowledge (id. at 20), $25,000 in 1974 is equivalent to 

$116,500 today — almost exactly the current $117,000 aggregate limit.29 More importantly, 

Shrink Missouri — which plaintiffs’ brief never mentions even though it is binding precedent 

here — categorically forecloses this argument. “Respondents seem to assume that Buckley set a 

minimum constitutional threshold for contribution limits, which in dollars adjusted for loss of 

purchasing power are now well above the [limits at issue]. But this assumption is a fundamental 

misunderstanding of what we held.” 528 U.S. at 396 (reiterating that ability to engage in 

“effective advocacy,” not dollar amount, is test for such challenges).

Second, plaintiffs claim that the aggregate contribution limits are equivalent to (or lower 

than) those struck down in Randall, the only case in which the Supreme Court has found a 

 28 To the extent plaintiffs purport to challenge the aggregate limit on contributions to 

candidates or PACs as too low (see, e.g., Pls.’ Mem. at 41), neither McCutcheon nor the RNC 

has standing to do so. As the cases discussed in the text above uniformly establish, the question 

of whether a contribution limit is too low is assessed from the perspective of recipients — i.e., 

whether those recipients can amass the resources necessary to engage in effective advocacy —

not from the perspective of contributors. No PAC or candidate is a plaintiff before this Court. 

29 Bureau of Labor Statistics, Inflation Calculator, 

http://www.bls.gov/data/inflation_calculator.htm/ (last visited July 8, 2012). Plaintiffs appear to 

argue at several points (Pls.’ Mem. at 20-21, 38) that the (non-aggregate) limit on individual 

contributions to candidates is lower than it was in 1974; this is entirely irrelevant since plaintiffs 

challenge only the aggregate limits here. (See id. at 37 (disavowing challenge to “the base percandidate limit”).) 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 43 of 50
37

contribution limit to fall below the constitutional minimum. (See Pls.’ Mem. at 32-41.) The 

Vermont limits struck down in Randall ranged from $200 to $400 per contributor, were not 

indexed for inflation, and were so low that some candidates — particularly challengers, whose 

success often depends on outspending their incumbent opponents — probably would not have 

been able to raise enough money to “run competitive campaigns.” See 548 U.S. at 253-62 

(quotation at 253).30 But the Court explicitly distinguished these limits from FECA’s limits, 

which were “far less problematic, for they were significantly higher than [Vermont’s].” Id. at 

258 (citing Colorado II); see also 2 U.S.C. § 441a(c)(1) (indexing aggregate limit for inflation). 

The RNC’s fundraising figures confirm the distinction the Court drew between the 

contribution limits at issue in Randall and those in FECA. The RNC received contributions 

totaling $83 million in 2007, $202 million in 2008, $80 million in 2009, $86 million in 2010, and 

$82 million in 2011 (Compl. ¶¶ 47-51), and it has taken in $81 million through the first five 

months of 2012.31 Of the thousands of candidates, political parties, and PACs in the nation, only 

two — President Obama’s campaign committee and the Democratic National Committee —

have taken in more contributions during this election cycle than the RNC. 

It cannot be credibly maintained that this high level of income has somehow made the

RNC “ineffective” or driven its “voice below the level of notice.” Shrink Missouri, 528 U.S. at 

397. The RNC spent $210 million in the 2009-2010 election cycle (Compl. ¶ 53), and, through 

 30 Plaintiffs imply that FECA’s aggregate contribution limit may serve a similarly 

impermissible incumbent-protection purpose (see Pls.’ Mem. at 37), but Buckley explicitly 

rejected that argument. See 424 U.S. at 30-33.

31 The RNC’s most recent monthly FEC report (filed in June 2012) is available at 

http://images.nictusa.com/pdf/737/12971367737/12971367737.pdf. A summary of its activity 

to date in this election cycle is available at http://query.nictusa.com/cgibin/cancomsrs/?_12+C00003418 (last visited July 8, 2012). A sortable summary of all party and 

PAC contributions and expenditures is available at 

http://www.fec.gov/data/CommitteeSummary.do?format=html&election_yr=2012 (last visited 

July 8, 2012).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 44 of 50
38

May 2012, it had spent $109 million in the 2011-2012 election cycle. That is, again, the third

highest of any candidate, political party, or PAC in the United States. Indeed, the RNC — by 

itself — has spent almost as much as the cost of every independent expenditure in the country

combined. (See Compl. ¶ 61 (citing evidence that $119 million has been spent on independent

expenditures this election cycle through June 12, 2012).).32 On their face, these facts refute any 

argument that FECA’s aggregate limit has rendered the RNC “useless.” Cf. Colorado II, 533 

U.S. at 455 (rejecting argument that political parties needed to be able to make larger 

contributions to candidates to be effective). Without evidence that the RNC’s massive income is 

insufficient to finance effective advocacy, plaintiffs cannot demonstrate that they are likely to 

succeed on the merits of their challenge to the dollar amounts of the aggregate limit.

* * *

In short, plaintiffs’ constitutional arguments cannot be sustained — they are foreclosed

by binding Supreme Court case law. Accordingly, plaintiffs cannot shoulder their heavy burden 

of demonstrating that they are likely to succeed on the merits of their claims.

III. PLAINTIFFS FACE NO COGNIZABLE HARM DURING THE PENDENCY 

OF THIS CASE

In addition to showing probable success on the merits of their case, plaintiffs must also 

demonstrate a likelihood — not merely a possibility — that they will suffer irreparable harm 

without injunctive relief. Winter, 555 U.S. at 22. “[T]he injury must be . . . actual and not 

theoretical . . . [and] of such imminence that there is a clear and present need for equitable relief 

. . . .” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). To meet this requirement, 

 32 To the extent the RNC’s complaint is that it wishes to take in even more money to 

compete with independent groups (see Pls.’ Mem. at 16), “that is an argument for the Supreme 

Court or Congress.” RNC, 698 F. Supp. 2d at 160 n.5; cf. Davis, 554 U.S. at 738 (holding that 

government cannot use contribution limits to equalize financial resources among political 

competitors).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 45 of 50
39

“[a] litigant must do more than merely allege the violation of First Amendment rights.” Wagner 

v. Taylor, 836 F.2d 566, 576 n.76 (D.C. Cir. 1987) (emphasis in original) (discussing Elrod v. 

Burns, 427 U.S. 347 (1976)); NTEU v. United States, 927 F.2d 1253, 1254-55 (D.C. Cir. 1991) 

(“A preliminary injunction is not appropriate . . . ‘unless the party seeking it can demonstrate that 

First Amendment interests are either threatened or in fact being impaired at the time relief is 

sought.’”) (quoting Wagner, alterations omitted). If plaintiffs make “no showing of irreparable 

injury, ‘that alone is sufficient’ for a district court to refuse to grant preliminary injunctive 

relief.” Hicks v. Bush, 397 F. Supp. 2d 36, 40 (D.D.C. 2005) (quoting CityFed Fin. Corp. v. 

Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)).

The RNC alleges that it would like to receive a $25,000 contribution from McCutcheon 

(see Compl. ¶¶ 35, 39), yet McCutcheon can give the RNC that money today; FECA’s aggregate 

limit does not prohibit him from doing so. Apparently, McCutcheon’s position is that he will not 

give this $25,000 contribution to the RNC unless he can also give the exact same amount to the 

NRSC and the NRCC at the same time. (Compl. ¶ 35.)33 In other words, the RNC alleges that it 

faces imminent harm because McCutcheon has decided not to make a legal contribution to his 

co-plaintiff RNC unless he can make large contributions to other parties as well. But the RNC’s 

inability to receive this $25,000 is the result of McCutcheon’s choice, not of FECA’s command.

Furthermore, the RNC’s purported need for urgent relief is belied by its own allegations. 

The RNC claims that Buckley’s rationale for upholding FECA’s aggregate limit on contributions 

to political parties was vitiated when Congress enacted a separate limit on individual 

contributions to parties in 1976. See supra pp. 26-27 (discussing Pls.’ Mem. at 8-11). Thus, 

 33 The RNC has no legal authority to assert harms on behalf of the NRSC or NRCC in this 

litigation. (See Compl. ¶ 43 (“RNC, NRSC, and NRCC are in fact distinct, with separate 

controlling officials and governing bodies.”)).

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 46 of 50
40

according to the RNC, the aggregate limit has been unconstitutionally infringing on the RNC’s 

rights for the past 36 years. Yet the RNC chose to wait until June 2012 to file this lawsuit and 

seek an injunction. That delay alone warrants denying the RNC’s request. See Tenacre 

Foundation v. INS, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996) (finding that seven-month delay before 

filing suit “undermines any assertions that [plaintiff] will suffer irreparable harm if the Court 

does not grant preliminary injunctive relief”); cf. Charlesbank Equity Fund II v. Blinds To Go, 

Inc., 370 F.3d 151, 163 (1st Cir. 2004) (“[Plaintiff’s] cries of urgency are sharply undercut by its 

own rather leisurely approach to the question of preliminary injunctive relief.”).

As to McCutcheon’s alleged harm, plaintiffs assert that “[a]ny contribution that [he] 

cannot make now dilutes the amount of speech he can make in [this election cycle].” (Pls.’

Mem. at 43.) But, as discussed supra pp. 7-8, 12-13, the primary First Amendment interest in 

making political contributions is in the symbolic act of contributing, not in the amount of the 

contribution. In any event, McCutcheon can contribute to all of the candidates and political 

parties he desires while this suit is pending.34 Id. Indeed, he could even give substantial 

amounts: More than $1,000 to each of the 12 candidates he wishes to support, and more than 

$16,000 to each of the three political party committees. (See Compl. ¶¶ 26-28, 35-37.) His 

decision to “dilute[ ] the amount of his speech” by not making these contributions is his own; it 

is not irreparable harm entitling him to emergency relief from enforcement of an Act of 

Congress.

 34 Buckley’s observation that contribution limits also leave contributors free to support 

candidates in other ways, 424 U.S. at 21-22, is particularly applicable to McCutcheon, who is the 

chairman and almost sole financier of a “super PAC” to which he has personally contributed 

more than $80,000. See Conservative Action Fund, http://conservativeactionfund.com/ (last 

visited July 8, 2012). Contributors to the PAC can be seen at http://query.nictusa.com/cgibin/com_ind/2011_C00496505. McCutcheon’s contribution records can be retrieved by 

searching for his name at http://www.fec.gov/finance/disclosure/norindsea.shtml.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 47 of 50
41

Finally, although this suit also purports to challenge the aggregate limits on contributions 

to PACs, there is not even an allegation that McCutcheon wishes to exceed the aggregate limit 

on PAC contributions during this election. Nor has any PAC come before the Court to ask for 

relief. There is therefore no harm from the aggregate PAC contribution limit that could possibly 

warrant enjoining that provision at this preliminary stage.

IV. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH 

AGAINST ENJOINING ENFORCEMENT OF THE AGGREGATE LIMIT

The balance of equities and the public interest weigh heavily in favor of preserving the 

status quo and denying plaintiffs’ request for extraordinary injunctive relief. 

In evaluating any request to enjoin the enforcement of a federal statute, “[t]he 

presumption of constitutionality which attaches to every Act of Congress is not merely a factor 

to be considered in evaluating success on the merits, but an equity to be considered in favor of 

[the government] in balancing hardships.” Bowen v. Kendrick, 483 U.S. 1304 (1987) 

(Rehnquist, C.J., in chambers) (internal quotation marks omitted); cf. United States v. Oakland 

Cannabis Buyer’s Co-op., 532 U.S. 483, 497 (2001) (holding that “[c]ourts of equity cannot, in 

their discretion, reject the balance that Congress has struck in a statute” by enjoining its 

enforcement). That presumption is at its apex here, because the Supreme Court has already 

determined that the statute in question is constitutional. See Christian Civic League of Me., Inc. 

v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 2006) (“To the extent that the injunction of the proposed 

application of those provisions interferes with the execution of the statute upheld by the Supreme 

Court . . . , the public interest is already established by the Court’s holding and by Congress’s 

enactment, and the interference therewith is inherent in the injunction.”) (internal quotation 

marks omitted). And given the RNC’s 36-year delay in bringing this case, the balance of 

equities weighs even further against an injunction. See Quince Orchard Valley Citizens Ass’n, 

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 48 of 50
42

Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989) (“[Plaintiffs’] delay is . . . quite relevant to 

balancing the parties’ potential harms. Since an application for preliminary injunction is based 

upon an urgent need for the protection of a Plaintiff’s rights, a long delay in seeking relief 

indicates that speedy action is not required.”) (internal quotation marks and brackets omitted).

As discussed above, the aggregate limit is a critical piece of FECA’s anti-corruption 

regime; enjoining its enforcement would therefore substantially injure the public interest. See 

Christian Civic League, 433 F. Supp. 2d at 90; see also Real Truth About Obama v. FEC, 575 

F.3d 342, 352 (4th Cir. 2009) (upholding denial of pre-election preliminary injunction), vacated 

on other grounds, 130 S. Ct. 2371 (2010). An injunction would open the door to multi-milliondollar direct contributors in the 2012 elections — individuals giving contributions of a size that 

has been proven to cause corruption and an appearance of corruption. The price of such 

corruption is ultimately paid by the public, and that price far outweighs the cost of 

McCutcheon’s voluntary decision to withhold funds from the RNC and various candidates while 

this case is pending. The critical months leading up to a nationwide election are more important 

— by orders of magnitude — than anything arising from plaintiffs’ strategic and self-imposed 

restrictions. 

CONCLUSION

Preserving the democratic process is undeniably one of the government’s most important 

interests. Congress has determined that an individual’s aggregate financial influence over that 

process can become so great as to pose an unacceptable risk and appearance of corruption. 

Congress imposed FECA’s aggregate contribution limit to reduce the likelihood of such 

corruption, and the Supreme Court found Congress’s action to be consistent with the First 

Amendment. Thus, and for all the foregoing reasons, plaintiffs’ motion for a preliminary 

injunction should be denied.

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 49 of 50
43

Respectfully submitted,

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

General Counsel

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

Associate General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Special Counsel to the General Counsel

 /s/ Adav Noti

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

Attorney

anoti@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

July 9, 2012 (202) 694-1650

Case 1:12-cv-01034-JEB-JRB-RLW Document 16 Filed 07/09/12 Page 50 of 50