No. 02-1676 and consolidated cases

IN THE

S u p r eme Cou rt of the U nite d State s

FEDERAL ELECTION COMMISSION, et al.

Appellants

vs.

SENATOR MITCH MCCONNELL, et al.

Appellees.

On Appeal from the United States

District Court for the District of Columbia

Joint Reply Brief on the Merits of Appellees Emily

Echols and Barret Austin O’Brock, et al.

(FINAL VERSION)

JAMES BOPP, JR.

RICHARD E. COLESON

THOMAS J. MARZEN

JAMESMADISON CENTER FOR

FREE SPEECH

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

(812) 232-2434

Attorneys for Appellee Barrett

Austin O’Brock

JAY ALAN SEKULOW

Counsel of Record

JAMES M. HENDERSON, SR.

STUART J. ROTH

COLBY M. MAY

JOEL H. THORNTON

WALTER M. WEBER

AMERICAN CENTER FOR LAW

& JUSTICE

201 Maryland Avenue NE

Washington, DC 20002-5703

(202) 546-8890

Attorneys for Appellees Emily

Echols, et al.
(i)

TABLE OF CONTENTS

Page

Table of Authorities .......................... iii

Glossary .................................... vi

Summary of Reply Argument ................... 1

Reply Argument .............................. 2

I. Because Section 318 Does Not Survive Scrutiny

under Buckley v. Valeo, It Is Unnecessary to Decide

Whether it Is Subject to Strict Scrutiny .......... 2

II. The Government Failed to Show That Section 318 Is

Closely Drawn in Support of a Sufficiently

Important Government Purpose ............... 4

A. The Government Failed to Establish An

Evidentiary Basis Showing a Sufficiently

Important Government Interest is to be Served by

Section 318 ............................. 5

1. Lack of Evidence Provided by the FEC to

Congress ............................. 8

2. Lack of Evidence in the Hands of the FEC . . 8

3. Lack of Grasp of “Corrupt Acts” or

“Appearance of Corruption” by the FEC ... 10

B. The Government Failed to Establish An

Evidentiary Basis Showing That Section 318 was

Closely Drawn .......................... 10

1. Section 318 Prohibits Even Symbolic Political

Contributions by Minors ................ 10
(ii)

TABLE OF CONTENTS–cont’d

Page

2. Section 318 Prohibits Political Contributions

by Minors Regardless of the Source of Funds,

Potential for Corruption, or the Circumstances

of the Minors ........................ 12

(a) Banning donations regardless of

source .......................... 12

(b) Banning de minimus donations ...... 13

(c) Banning Donations Regardless of the

Circumstances of the Minors Affected . 13

3. Section 318 Prohibits Political Contributions

by Minors Even Though The FEC Never

Sought a Ban on Contributions ........... 16

4. Section 318 Prohibits Political Contributions

by Minors Even Though A Prior FEC

Regulation Insured that Donations by Minors

were not Conduit Contributions from Parents

or Guardians ......................... 17

Conclusion ................................. 18
(iii)

TABLE OF AUTHORITIES

Page(s)

CASES

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

Chisom v. Roemer, 501 U.S. 380 (1991) ........... 2

FEC v. Beaumont, 123 S. Ct. 2200 (2003) ... 3, passim

FEC v. National Conservative Political Action Comm.,

470 U.S. 480 (1985) ........................ 7

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982) ........................ 2

Harrison v. PPG Industries, Inc.,

446 U.S. 578 (1980) ........................ 2

INS v. St. Cyr, 533 U.S. 289 (2001) ............... 2

Jenkins v. Anderson, 447 U.S. 231 (1980) .......... 2

Martinez v. Court of Appeal, 528 U.S. 152 (2000) ... 2

NAACP v. Button, 371 U.S. 415 (1963) ........... 12

Nixon v. Shrink Missouri Gov. PAC,

528 U.S. 377 (2000) ................... 1, 7, 11

Schneider v. State, 308 U.S. 147 (1939) .......... 18

Tinker v. Des Moines Indep. School Dist.,

393 U.S. 503 (1969) ........................ 6
(iv)

TABLE OF AUTHORITIES–cont’d

Page(s)

STATUTES AND REGULATORY MATERIALS

Bipartisan Campaign Reform Act (BCRA)

§ 307(a) ................................. 13

§ 318 .............................. 2, passim

Title 10 U.S.C. § 505 (2002) ................... 14

11 C.F.R. 102.9(a)(1) .......................... 9

11 CFR 110.1(i)(2) (2002 rev. ed.) .............. 17

Ala. Code 

§ 25-8-33 (2002) ............ ............ ........ 16

§ 26-1-1(1) (2002) ............ ............ ...... 15

§ 26-13-1(1)-(3) (2002) ............ ............ . . 15

§ 26-13-8 (2002) ............ ............ ........ 15

Fla. Stat. Ann. 

§ 450.012 (2001) ............ ............ ........ 16

§ 743.01 (2001) ............ ............ ......... 15

§ 743.07(1) (2001) ............ ............ ...... 15

§ 743.015(1) (2001) ............ ............ ..... 15

§ 743.015(7) (2001) ............ ............ ..... 15

Ga. Code Ann. 

§ 13-3-20(a), (b) (2002) ............ ............ . . 15

§ 39-1-1(a) (2002) ............ ............ ....... 15

§ 39-2-1 (2002) ............ ............ ......... 16

La. R.S. 23:161 (2002) ............ ............ ..... 16

La. Civ. Code Ann. 

art. 29 (2002) ............ ............ .......... 15

art. 385 (2002) ............ ............ ......... 15

art. 3993 (2002) ............ ............ ........ 15
(v)

TABLE OF AUTHORITIES–cont’d

Page(s)

CONGRESSIONAL RECORD

148 Cong. Rec. S2145 (daily ed. March 20, 2002) ... 8

OTHER MATERIALS

SIR ARTHUR CONAN DOYLE, SILVER BLAZE, in THE

ADVENTURES AND MEMOIRS OF SHERLOCK HOLMES

(Modern Library 2001) ...................... 2
(vi)

GLOSSARY

BCRA – Bipartisan Campaign Reform Act of 2002

Op. Br. – Opening Brief

FEC Br. – FEC Merits Brief

JA – Joint Appendix

JS – Jurisdictional Statement
(1)

SUMMARY OF REPLY ARGUMENT

This Court has not abandoned its teaching in Buckley v.

Valeo, 424 U.S. 1 (1976) that political contributions

embody the exercise of fundamental rights at the core of

the First Amendment. 424 U.S. at 14 (“contribution and

expenditure limitations operate in an area of the most

fundamental First Amendment activities”); id., 424 U.S. at

22 (“The Act's contribution and expenditure limitations

also impinge on protected associational freedoms”). The

First Amendment dimension of contributions is obvious:

a decision to contribute money to a campaign is a

matter of First Amendment concern . . . . Through

contributions the contributor associates himself with

the candidate's cause, helps the candidate

communicate a political message with which the

contributor agrees, and helps the candidate win by

attracting the votes of similarly minded voters.

Nixon v. Shrink Missouri Gov. PAC, 528 U.S. 377, 400

(2000) (BREYER, J., joined by GINSBURG, J.,

concurring).

On appeal, then, unless Buckley is to be overturned, the

Government is bound to this Court’s teaching in Buckley

that political contributions have an important

constitutional stature. Thus, it fell to the Government to

show that the district court erred in concluding that

Section 318 failed constitutional scrutiny under Buckley.

In its two paragraph argument against the judgment below,

however, the Government omitted even an express

contention of error by the district court. See FEC Br. at

133-34. The Government offered no legally sufficient
2

1. Invoking the literary device of the hounds that did not bark in

the night, see SIR ARTHUR CONAN DOYLE,SILVER BLAZE, in THE

ADVENTURES AND MEMOIRS OF SHERLOCK HOLMES 272

(Modern Library 2001), this Court and individual Justices have

occasionally considered the meaning to be drawn from

unexpected silences. See INS v. St. Cyr, 533 U.S. 289, 320 n.44

(2001); Martinez v. Court of Appeal, 528 U.S. 152, 159 and n.6

(2000); Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991);

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 588 n.20

(1982) (Stevens, J., joined by Blackmun, J.) (dissenting); Jenkins

v. Anderson, 447 U.S. 231, 244 (1980) (Stevens, J.) (concurring

in the judgment); Harrison v. PPG Industries, Inc., 446 U.S. 578,

(1980) (Rehnquist, J.) (dissenting). The Government is curiously

silent about the choice of standards below and their application.

reason to reverse the judgment below. 

The Government did not dispute that the complete ban

on political donations by minors is subject to the exacting

scrutiny described by Buckley. Nor did the Government

identify any error in the manner of the district court’s

application of Buckley scrutiny to Section 318.1 Instead,

the Government offers only two meritless arguments in its

attack on the judgment below.

REPLY ARGUMENT

I. BECAUSE SECTION 318 DOES NOT SURVIVE

SCRUTINY UNDER BUCKLEY V. VALEO, IT IS

UNNECESSARY TO DECIDE WHETHER IT IS

SUBJECT TO STRICT SCRUTINY.

The Government opens its defense of Section 318 by

arguing against the application of strict scrutiny to Section

318. The Government urges that, in light of this Court’s
3

2. It is worth noting, however, that the Government characterizes

Section 318 as a ban, not a limitation. See FEC Br. at 134 (“the

fact that BCRA § 318 bans rather than limits contributions by

minors . . . is relevant to the First Amendment analysis”).

decision in FEC v. Beaumont, 123 S. Ct. 2200 (2003),

strict scrutiny is not applicable to the ban on political

contributions by minors. See FEC Br. at 133-34.2 That

argument is a distraction because even under the more

lenient scrutiny called for by Buckley v. Valeo, 424 U.S. 1,

25 (1976), Section 318 is unconstitutional. See Op. Br.

at 3-4 (discussing holding).

The Government’s argument responds to a footnote in

the Opening Brief for these Appellees. See Op. Br. at 34

n.38. There, these minor Appellees noted that strict

scrutiny is apt in the analysis of Section 318 because that

section completely prohibits political campaign

contributions by minors. Id. Key differences between the

corporation contributions ban sustained in Beaumont and

the complete ban on political contributions by minors

imposed by Section 318, see Op. Br. at 37-39,

undoubtedly justify the application of strict scrutiny.

The Government leaves unmentioned the fact that the

footnote in question is appended to an explanation of the

harmony between Beaumont and the judgment below. See

Op. Br. at 34, Argument I(D). Remarkably, while

attacking the call for application of strict scrutiny, the

Government failed to respond to, or rebut, the meticulous

showing by these Appellees that the judgment below

rested on the sound application of Buckley scrutiny. See
4

3. This Court need not decide the level of scrutiny applicable to

Section 318 unless it concludes, first, that the district court erred

in concluding that Section 318 fails scrutiny under Buckley.

Op. Br. at 19-34. Because, as the district court correctly

concluded, Section 318 does not survive Buckley scrutiny,

this Court need not decide whether strict scrutiny applies

to Section 318.3

II. THE GOVERNMENT FAILED TO SHOW THAT

SECTION 318 IS CLOSELY DRAWN IN

SUPPORT OF A SUFFICIENTLY IMPORTANT

GOVERNMENT PURPOSE.

The Government asserts that Section 318 is “a valid

means of preventing circumvention” of contribution limits

by adults. See FEC Br. at 134. The Government’s

“validity” standard is inconsistent with the First

Amendment values at stake here and does not comport

with this Court’s application of a “rigorous standard of

review,” 424 U.S. at 29, in Buckley. 

Instead of mere “validity,” Buckley calls for an

examination of the interest to be served and of the means

chosen to serve the interest. Only sufficiently important

purposes suffice to sustain limitations on contributions.

424 U.S. at 25. Moreover, there must be a sufficiently

close drawing of the means to the end. Id.

The judgment below – that Section 318 violates the

Constitution – rests on the conclusions of law separately

reached by Judges Henderson and Kollar-Kotelly that the

challenged provision did not survive scrutiny under
5

4. See Op. Br. at 3-4; Supp. App. 462sa (Henderson, J.) (“the

government has not even demonstrated under Buckley’s

contribution-to-candidate standard of review that section 318

serves a ‘sufficiently important interest’ by means ‘closely drawn

to avoid unnecessary abridgement of [First Amendment]

freedoms’”); Supp. App. 1009sa (Kollar-Kotelly, J.) (“even if

exacting scrutiny were applied to the present situation,

Defendants have failed to present sufficient evidence to establish

that parents’ use of minors to circumvent campaign finance laws

serves an important government interest”). Judge Leon

concurred in the legal conclusions that formed the basis of the

view expressed by Judges Henderson and Kollar-Kotelly that

Section 318 failed scrutiny under Buckley. Supp. App. 1180sa.

Buckley.

4

 Rather than showing how the district court erred

in its choice of the applicable standards or its application

of them, the Government chooses here only to repeat its

highly abbreviated, “children cannot vote so they do not

count” argument. FEC Br. at 134.

A. THE GOVERNMENT FAILED TO ESTABLISH

AN EVIDENTIARY BASIS SHOWING A

SUFFICIENTLY IMPORTANT GOVERNMENT

INTEREST IS TO BE SERVED BY SECTION 318.

The Government asserts that Section 318 is a “valid

means of preventing circumvention of the FECA/BCRA

contribution limits by adults who might otherwise use

minors as surrogate contributors.” See FEC Br. at 134.
6

Mere conjecture or speculation about circumvention of

contribution limitations cannot justify the wholesale denial

of constitutional rights of minors. All three judges below

concluded that the Government had failed to carry its

evidentiary burden on this question: 

• Judge Henderson concluded that “[t]he government’s

evidence of corruption-by-conduit . . . is remarkably

thin . . . .” Supp. App. 463sa.

• Judge Kollar-Kotelly found that “the evidence

presented is insufficient to support government action

that abridges constitutional freedoms,” Supp. App.

1010sa, and that “[t]he Government’s failure” to proffer

“a more robust record establishing that such corruption

exists” “dooms their argument and Section 318 of

BCRA,” Supp. App. 1011sa.

• Judge Leon concluded that, “[i]f there were in fact more

substantial evidence of such circumvention . . . then

restrictions, which are somewhat more onerous on

children than on adults given a child’s lack of

independence, may be justifiable based on a compelling

government interest. That is not the case here.” Supp.

App. 1180sa (emphasis added).

Absent a quantum of evidence sufficient to support the

asserted justification for Section 318, this new federal ban

on political contributions only serves the speculations of

Congress. Cf. Tinker v. Des Moines Indep. School Dist.,

393 U.S. 503, 508-09 (1969) (“undifferentiated fear or

apprehension of disturbance is not enough to overcome the

right to freedom of expression”). Conjecture and

speculation, however, do not equate with the kind of
7

substantive evidence necessary to sustain a burden on First

Amendment rights. This Court has explained: “We have

never accepted mere conjecture as adequate to carry a First

Amendment burden . . . .” Nixon v. Shrink Missouri

Government PAC, 528 U.S. 377, 392 (2000) (SOUTER, J.,

joined by REHNQUIST, C. J., and STEVENS,

O'CONNOR, GINSBURG, and BREYER, JJ.). 

The district court’s conclusion regarding the

Government’s weak evidentiary showing to establish the

relevant governmental interest echoes this Court’s view in

FEC v. National Conservative Political Action Comm.,

470 U.S. 480 (1985). There, this Court explained:

the FEC attempted to show actual corruption or the

appearance of corruption by offering evidence of

high-level appointments in the Reagan

administration of persons connected with the PACs

and newspaper articles and polls purportedly

showing a public perception of corruption. . . . A

tendency to demonstrate distrust of PACs is not

sufficient. We think the District Court's finding that

‘the evidence supporting an adjudicative finding of

corruption or its appearance is evanescent,’ was

clearly within its discretion, and we will not disturb

it here.

470 U.S. at 499-500 (REHNQUIST, J., joined by Burger,

Ch. J., and Brennan, Blackmun, Powell, STEVENS, and

O'CONNOR, JJ.) (citation omitted). The Government’s

“thin” evidence here was just as evanescent.
8

5. 148 Cong. Rec. S2145 (daily ed. March 20, 2002) (statement

of Sen. McCain) (emphasis added).

6. See JA 1756-57 (FEC Response to Request to Admit No. 20).

1. Lack of Evidence Provided by the FEC to

Congress. 

Senator McCain offered the only explanation for

Section 318 in the floor debates of either the House or the

Senate:

we believe that wealthy individuals are easily

circumventing contribution limits to both political

candidates and parties by directing their children's

contributions. Indeed, the FEC in 1998 notified

Congress of its difficulties in enforcing the current

provision. Its legislative recommendations to

Congress that year cited “substantial evidence that

minors are being used by their parents, or others, to

circumvent the limits imposed on contributors.”5

The FEC denied, however, that it had ever “stated in its

legislative recommendations that it had ‘substantial

evidence that minors are being used by their parents, or

others, to circumvent the limits imposed on

contributors.’”6

2. Lack of Evidence in the Hands of the FEC.

The FEC admitted below that it lacked relevant,

probative evidence of corruption or the appearance of

corruption resulting from contributions by minors to

candidates or to committees of political parties. The

Echols Appellees asked the FEC to admit as true that ‘[n]o
9

7. See JA 1762-63 (FEC Response to Request to Admit No. 41).

8. See JA 1762-63 (FEC Response to Request to Admit No. 41).

9. See JA 1763 (FEC Response to Request to Admit No. 42).

10. See JA 1763 (FEC Response to Request to Admit No. 42).

present member of Congress” or “other elected federal

officer” had “engaged in any corrupt act as a result of

contributions by minors to candidates or contributions or

donations by minors to committees of political parties.”7

In response, the FEC stated that it had “made a reasonable

inquiry into this request, and the information that is readily

known or available to it is insufficient to enable the

Commission to admit or deny the request.”8 

Not only did the FEC lack evidence of actual

corruption, its lacked evidence of an appearance of such

corruption. The Echols Appellees asked the FEC to admit

that “[n]o present member of Congress or any other

elected federal officer has an appearance of corruption as

a result of contributions by minors or donations by minors

to committees of political parties.”9 In response, the FEC

again averred that it lacked sufficient information to allow

it to admit or deny that fact statement.10

It would have been difficult, in any event, for the FEC

to provide evidence probative of parental circumvention

because the FEC never required the reporting of the ages

of donors. See 11 C.F.R. 102.9(a)(1) (requiring

committees to record name and address only of donors).
10

11. See JA 1762-63 (FEC Response to Request to Admit Nos.

41 and 42).

3. Lack of Grasp of “Corrupt Acts” or “Appearance

of Corruption” by the FEC.

The FEC admitted lacking a key prerequisite to the task

of identifying and collecting evidence about corruption or

the appearance of corruption resulting from political

contributions by minors: an understanding of what

constitutes corruption or the appearance of it. As noted,

the Echols Appellees asked the FEC about evidence of

corrupt acts or the appearance of corruption. In response,

the FEC objected that the terms “any corrupt act” and “has

an appearance of corruption” were vague.11

B. THE GOVERNMENT FAILED TO ESTABLISH

AN EVIDENTIARY BASIS SHOWING THAT

SECTION 318 WAS CLOSELY DRAWN.

Judge Henderson noted the ample reasons to conclude

that Section 318 did not reflect such an exercise in careful

tailoring that the ban on political contributions by minors

might be described as “closely drawn.” Supp. App. 466sa;

see also Supp. App. 1180-81sa (opinion of Judge Leon)

(adopting Judge Henderson’s conclusion regarding lack of

narrow tailoring). Here, the Government fails to rebut

those points.

1. Section 318 Prohibits Even Symbolic Political

Contributions by Minors.

These Appellees have shown the overreaching breadth

of Section 318. See Op. Br. at 28-30, 45-47. As this Court

taught in Buckley, 424 U.S. at 30, and as Judge Henderson
11

12. Four States do just that. See Op. Br. at 32 (citing statutes).

noted below, “distinctions in degree become significant

. . . when they can be said to amount to differences in

kind.” Supp. App. 464sa. Cf. Shrink Missouri Gov. PAC,

528 U.S. at 402 (BREYER, J., joined by GINSBURG, J.)

(concurring) (“[i]n service of these objectives, the statute

imposes restrictions of degree. It does not deny the

contributorthe opportunity to associate with the candidate

through a contribution, though it limits a contribution's

size”) (emphasis added). The complete prohibition of

political contributions by minors, however, reflects that

kind of significant distinction in degree that amounts to a

difference in kind. No mere limitation like the

contributions ceiling affirmed in Buckley, Section 318 is

a ban. FEC Br. at 134 (“BCRA § 318 bans rather than

limits contributions by minors”). Nor is this ban

comparable to the “limitation” sustained in Beaumont, for

corporations remained at liberty to form PACs as a means

of supporting candidates of their preference. 123 S. Ct. at

2203-04. Even nominal donations by minors, however,

are banned by Section 318. Under a limitation scheme,

even a severe one, the symbolic act of giving would have

been preserved as a means for minors to express their

association with a candidate or a committee of a political

party:12

A limitation . . . permits the symbolic expression of

support evidenced by a contribution . . . . 

Buckley, 424 U.S. at 21.
12

2. Section 318 Prohibits Political Contributions by

Minors Regardless of the Source of Funds,

Potential for Corruption, or the Circumstances of

the Minors.

This Court has construed the Constitution as requiring

specificity when regulating in the area of activities

protected by the First Amendment. NAACP v. Button, 371

U.S. 415, 433 (1963) (“[p]recision . . . must be the

touchstone”). By contrast, Section 318 bans all donations

by every minor in any amount to every candidate for

any federal office and to every committee of any political

party. Section 318 reflects a careless approach to the

crafting of a legislative response. 

(a) Banning donations regardless of source

Section 318 is not limited to the donations of funds

obtained from parents or guardians. The minors’

uncontradicted evidence showed that they had funds from

which they could make donations that were not

attributable to parental conduit giving. See Op. Br. at 9

and n.13; id. at 10-11. No ready or apparent nexus exists

between parental conduit contributions and donations

minors make with money gotten by running a pet-sitting

service, working as a church secretary, giving lessons in

horsemanship, or by making and selling seasonal crafts.

Despite the lack of a nexus, Section 318 bans

all contributions from minors without regard to source.

Such a prohibition is utterly disconnected from Congress’s

intention to address parental circumvention of donation

limitations. Section 318 simply does not differentiate

donations based on the source from which minors draw
13

13. See Op. Br. at 22 n.23.

14. See Op. Br. at 10.

15. See JA 833-34, Declaration of Zachary White, ¶ 19.

their funds: employment, gift, devise, bequeath, or

intentional parental circumvention.

(b) Banning de minimus donations

Section 318 bans donations that do present the risk of

corruption or the appearance of corruption: donations like

Jessica Mitchell’s five dollar gift to a candidate,13 or Barret

O’Brock’s twenty dollars to his Sunday School teacher

when he ran for Congress.14 If the ban on donations in

such de minimus amounts is to be justified by the interest

in preventing corruption or the appearance of it, the claim

is impossible to justify in light of the FECA’s tolerance of

significantly larger donations from adults. There is simply

no sensible explanation why nominal donations of five, ten

or twenty dollars present too great risk of corruption when

given by minors while the risk of corruption from the

contributions by adults remains tolerable until donations

exceed two thousand dollars in each election cycle. See

FEC JS at 57a (BCRA § 307(a)). 

(c) Banning Donations Regardless of the

Circumstances of the Minors Affected

In a perfect world, children and their parents would

enjoy continuous harmony and accord, including in the

choice of candidates for elected office. Section 318

screens reality. Parents and children do not always agree

on the merits of political candidates.15 There is no
14

16. Curiously absent from the Government’s argument,

however, is any reference to supporting authority for its general

propositions.

principled justification for banning donations made by

minors in disagreement with the political opinions and

choices of parents. 

In a perfect world, the United States would be free from

the dangers of international conflict. Section 318 utterly

disrespects the self sacrifice and devotion of minors who

choose to serve the common good as members of the

Armed Forces while still in their minority. Title 10 U.S.C.

§ 505 (2002). The Government allows minors to serve as

airmen, soldiers, Marines and sailors, putting at risk life

and limb, but bars them from making political

contributions from their meager military pay.

In a perfect world, no minor would be an orphan. But

in the real world, Section 318 prohibits political

contributions even by orphaned minors whose deceased

parents simply cannot use their children as a conduit.

The Government’s short-hand assertions regarding the

legal status of minors also screens reality in important

ways. The Government asserts, “[m]inors have

historically been barred from voting, from entering into

binding contracts, and from disposing of property.” FEC

Br. at 134.16 To the contrary of the Government’s view,

the States take distinct and varied approaches to answering

the questions related to what disabilities, if any, State law

imposes on minors and when and under what

circumstances. While an extended discussion is beyond
15

17. The Government’s argumentregarding the status of minors

at law fails to reflect the variety of approaches taken amongst the

States. For example, Alabama, Florida, Georgia and Louisiana

– the States of residence of the minor Appellees – have enacted

varying provisions regarding the age of majority and regarding

the conditions under which a minor below the age of majority

may be legally emancipated from the custody, care and control

of their parents. See Ala. Code § 26-1-1(1) (2002); Ala. Code §

26-13-1(1)-(3) (2002); Ala. Code § 26-13-8 (2002); Fla. Stat.

Ann. § 743.07(1) (2001); Fla. Stat. Ann. § 743.01 (2001); Fla.

Stat. Ann. § 743.015(1), (7) (2001); Ga. Code Ann. § 39-1-1(a)

(2002); La. Civ. Code Ann. art. 29 (2002); La. Civ. Code Ann.

art. 385 (2002); La. Civ. Code Ann. art. 3993 (2002). 

Moreover, the Government’s contention regarding the

traditional rule that minors lack capacity to contract fails to

reflect the nuances and development of the law in this area. For

example, minors may contract for the provision of necessaries

and cannot avoid responsibility for payment for such necessaries

except in limited circumstances. See Ga. Code Ann. § 13-3-

20(a), (b) (2002).

the range of pages permitted on reply, a few brief

observations serve to fully undermine the Government’s

assertion.

 First, while attaining majority at age eighteen

undoubtedly bears social and personal significance to

minors, the law of the Several States recognize that many

minors become capable of managing their affairs before

turning eighteen. The States in which the minor Appellees

reside illustrate the broad variety of approaches under state

law.17 Second, despite the claim that minors traditionally

have been barred from entering into contracts, laws across
16

18. Alabama, Florida, Georgia and Louisiana all permit minors

to be employed, even at ages as young as 11, although work

permits are required, and minors are subject to hour, school and

type-of-work restrictions that vary according to age. See Code

of Ala. § 25-8-33 (2002), et seq.; Fla. Stat. § 450.012 (2001), et

seq.; Ga. Code Ann. § 39-2-1 (2002), et seq.; La. R.S. 23:161

(2002), et seq. 

the Nation broadly evidence the willingness of the States

to permit minors to enter into contractual arrangements in

at least one discrete area: employment.18 Yet, under

Section 318, not even fully emancipated minors may make

political contributions, not even from funds earned through

lawful employment.

3. Section 318 Prohibits Political Contributions by

Minors Even Though the FEC Never Sought a

Ban on Contributions.

There is no pretense of tailoring about the complete ban

on political contributions by minors. By contrast, in its

Annual Reports, the FEC recommended that Congress take

a closely drawn approach to this issue. See Op. Br. at 6-7.

The FEC variously suggested adopting statutory

presumptions regarding donations from minors under the

age of sixteen and the adoption of lower minimum ages for

eligibility to make political contributions. Id.
17

19. The regulation, former 11 CFR 110.1(i)(2) (2002 rev. ed.),

permitted contributions by minors so long as:

(i) The decision to contribute is made knowingly and

voluntarily by the minor child;

(ii) The funds, goods, or services contributed are owned or

controlled exclusively by the minor child, such as income

earned by the child, the proceeds of a trust for which the child

is the beneficiary, or a savings account opened and

maintained exclusively in the child’s name; and

(iii) The contribution is not made from the proceeds of a gift,

the purpose of which was to provide funds to be contributed,

or is not in any other way controlled by another individual.

4. Section 318 Prohibits Political Contributions by

Minors Even Though A Prior FEC Regulation

Insured that Donations by Minors were not

Conduit Contributions from Parents or

Guardians.

Prior to the enactment of Section 318, the FEC enforced

a regulation that insured that contributions from minors

were not, in fact, conduit contributions from parents. See

11 CFR 110.1(i)(2) (2002 rev. ed.).19 That regulation

focused precisely on the likely means of conduit giving by

parents. It required that donations by minors be made

knowingly and voluntarily, from funds under the minor’s

exclusive control, and not from funds given for the

purpose of funding such contributions. 

The FEC closely drew its regulation to meet the

relevant government interests. Congress ignored that

model in drawing Section 318: it bears no sign of

precision on the important issues of sources of funds,
18

independence of judgment, and absence of conduit. In

response, the Government avers that while Section 318

certainly is a ban, rather than a limitation, minors remain

free to participate in the political process in other ways.

See FEC Brief at 134. This Court has rejected the very

approach the Government condones. See Schneider v.

State, 308 U.S. 147, 163 (1939) (“one is not to have the

exercise of his liberty of expression in appropriate places

abridged on the plea that it may be exercised in some other

place”); see also Supp. App. 466-67sa (rejecting

Government’s argument “[u]nder long-standing First

Amendment principles”) (citing cases).

CONCLUSION

The judgment of the District Court – holding Section

318 of the BCRA unconstitutional – should be affirmed. 

Respectfully submitted,

JAMES BOPP, JR.

RICHARD E. COLESON

THOMAS J. MARZEN

JAMES MADISON CENTER

FOR FREE SPEECH

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

(812) 232-2434

Attorneys for Appellee Barrett

Austin O’Brock

August 21, 2003.

JAY ALAN SEKULOW

Counsel of Record

JAMES M. HENDERSON, SR.

STUART J. ROTH

COLBY M. MAY

JOEL H. THORNTON

WALTER M. WEBER

AMERICAN CENTER FOR LAW

& JUSTICE

201 Maryland Avenue NE

Washington, DC 20002-5703

(202) 546-8890

Attorneys for Appellee Emily

Echols, et al.