UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

MCCUTCHEON, et al., ) 

) 

Plaintiffs, ) 

) No. 12-cv-01034-JEB-JRB-RLW 

v. ) 

) THREE-JUDGE COURT 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

__________________________________________) 

MEMORANDUM OF CAMPAIGN LEGAL CENTER 

AND DEMOCRACY 21 AS AMICI CURIAE IN OPPOSITION 

TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Fred Wertheimer 

DEMOCRACY 21 

2000 Massachusetts Avenue, N.W. 

Washington, D.C. 20036 

(202) 429-2008 

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Amici Curiae

J. Gerald Hebert 

Tara Malloy 

Paul S. Ryan 

THE CAMPAIGN LEGAL CENTER

215 E Street, N.E. 

Washington, D.C. 20002 

(202) 736-2200 

Counsel for Amici Curiae 

 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 1 of 36
i

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ...................................................................................................... iii 

SUMMARY OF ARGUMENT .................................................................................................... 1 

ARGUMENT ................................................................................................................................. 3 

I. Elimination of the Aggregate Contribution Limits Would Eviscerate the 

Individual Contribution Limits and Allow Donors to Make Massive 

Contributions to Benefit the Political Party and Candidates of Their Choice. ........... 3 

A. Absent the Aggregate Limits, Party Committees Could Accumulate 

Millions of Dollars From A Single Donor. ............................................................. 3 

B. The Use of Joint Fundraising Committees and Internal Party Transfers 

Would Enable Donors to Give Massive Contributions With a Minimum of 

Effort.. ..................................................................................................................... 6 

C. Invalidation of the Aggregate Limits Would Reinvigorate the Practice of 

Soft Money Solicitations by Federal Candidates and Officeholders, 

Thereby Recreating the Corruptive Practices That Necessitated the 

Enactment of BCRA................................................................................................ 9

II. The Aggregate Limits Are Constitutional. .................................................................... 11 

A. The Buckley Decision Controls This Case. ........................................................... 11 

B. The Governmental Interests That Were Found in Buckley to Support the 

Constitutionality of the $25,000 Aggregate Limit Also Support the PostBCRA Aggregate Limits. ...................................................................................... 14 

1. The Aggregate Limits Directly Serve the Governmental Interest in 

Preventing Quid Pro Quo Corruption and the Appearance of 

Corruption. ................................................................................................ 14 

a. The $70,800 Aggregate Limit on Contributions to Party 

Committees and PACs. ................................................................. 14 

b. The $46,200 Aggregate Limit on Contributions to

Candidate Committees. ................................................................. 17 

2. The Aggregate Limits Block Circumvention of the Individual 

Contribution Limit and Other FECA Contribution Limits. ...................... 19 

a. The $70,800 Aggregate Limit on Contributions to Party 

Committees and PACs. ................................................................. 19 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 2 of 36
ii

b. The $46,200 Aggregate Limit on Contributions to

Candidate Committees. ................................................................. 27 

CONCLUSION ............................................................................................................................ 29 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 3 of 36
iii

TABLE OF AUTHORITIES 

Cases: 

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

California Medical Ass’n v. FEC, 453 U.S. 182 (1981) ......................................................... 15, 24 

Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604 (1996) ......................... 17 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................................. 16 

FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431(2001) .......................... 25

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 479 (2007) .................................................. 25 

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

RNC v. FEC, 698 F. Supp. 2d 150 (D.D.C.), aff’d, 130 S. Ct. 3544 (2010) (mem.) .................... 17 

Randall v. Sorrell, 548 U.S. 230 (2006).................................................................................. 21, 22 

Statutes and Regulations: 

2 U.S.C § 441a(a)(1)(A) .................................................................................................................. 3

2 U.S.C. § 441a(a)(1)(B) ................................................................................................................. 3 

2 U.S.C § 441a(a)(1)(C) .................................................................................................................. 4

2 U.S.C. § 441a(a)(1)(D) ................................................................................................................. 4

2 U.S.C. § 441a(a)(3) .................................................................................................................. 1, 4

2 U.S.C. § 441a(a)(3)(A) ................................................................................................................. 4

2 U.S.C. § 441a(a)(3)(B) ................................................................................................................. 4

2 U.S.C. § 441a(d) ......................................................................................................................... 10

2 U.S.C. § 441a(a)(4) ...................................................................................................................... 8

2 U.S.C. § 441i(a)(1) ....................................................................................................................... 9 

2 U.S.C. § 441i(a)(2) ....................................................................................................................... 9

2 U.S.C. § 441i(e)(1) ....................................................................................................................... 9

2 U.S.C. § 441i(e)(2) ....................................................................................................................... 9

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 4 of 36
iv

Bipartisan Campaign Reform Act, Pub. L. No. 107–155, 116 Stat. 81 (2002)............................... 1

Federal Election Campaign Act Amendments of 1974, Pub. L. 93–443, 88 Stat. 1263 

(1974) ............................................................................................................................................ 23

Federal Election Campaign Act Amendments of 1976, Pub. L. 94–283, 90 Stat. 475 

(1976) ............................................................................................................................................ 20 

Bipartisan Campaign Reform Act § 307(a)(1), 116 Stat. 102–03 ................................................. 13

Bipartisan Campaign Reform Act § 307(b), 116 Stat. 102–03 ..................................................... 12 

Administrative Regulations: 

11 C.F.R. § 102.17 .......................................................................................................................... 6

11 C.F.R. § 102.17(a)(2) ................................................................................................................. 6

11 C.F.R. § 102.17(c)(2) ................................................................................................................. 6

11 C.F.R. § 102.17(c)(5) ................................................................................................................. 6

11 C.F.R. § 105(g) ......................................................................................................................... 20

11 C.F.R. § 109.32 ........................................................................................................................ 10

11 C.F.R. § 110.1(b) ........................................................................................................................ 3

11 C.F.R. § 110.1(c)(1) ................................................................................................................... 3

11 C.F.R. § 110.1(c)(3) ................................................................................................................... 4

11 C.F.R. § 110.1(c)(5) ................................................................................................................... 4

11 C.F.R. § 110.3(b) ...................................................................................................................... 20 

11 C.F.R. § 110.3(c) ........................................................................................................................ 8

11 C.F.R. §110.5 ............................................................................................................................. 4

Miscellaneous Resources: 

Center for Responsive Politics, Joint Fundraising Committees, 

http://www.opensecrets.org/pres08/jfc.php?cycle=2008 ................................................................ 7 

FEC, Contribution Limits for 2011-2012, 

http://www.fec.gov/pages/brochures/contriblimits.shtml ............................................................... 3 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 5 of 36
v

FEC, Coordinated Party Expenditure Limits 2012, 

http://www.fec.gov/info/charts_441ad_2012.shtml ...................................................................... 10 

FEC, Summary of PAC Activity Through March 31 of the Election Year, 

http://fec.gov/press/summaries/2012/ElectionCycle/file/pac_financial_activity/Q1/PAC1

q12012.pdf....................................................................................................................................... 5

Michael Luo and Griff Palmer, In Fine Print, a Proliferation of Large Donors, N.Y. 

Times, Oct. 20, 2008, available at

http://www.nytimes.com/2008/10/21/us/politics/21donate.html .................................................... 7

Matthew Mosk, McCain Able to Skirt Limits of Federal Financing, Wash. Post., Sept. 17, 

2008, available at http://www.washingtonpost.com/wpdyn/content/article/2008/09/16/AR2008091603321.html............................................................... 7 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 6 of 36
1

SUMMARY OF ARGUMENT 

 In this case, plaintiffs McCutcheon and the Republican National Committee take aim at 

settled Supreme Court precedent, and request that this court disregard Buckley v. Valeo, 424 U.S. 

1 (1976), in order to strike down the aggregate limits on contributions by individuals in 

connection to federal elections at 2 U.S.C. § 441a(a)(3). 

In Buckley, the Supreme Court upheld the predecessor version of these aggregate limits 

based on the Court’s recognition that aggregate limits are necessary to prevent donors from 

circumventing the limits on contributions to candidates “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. 

Plaintiffs present no credible argument for why this holding in Buckley does not control 

this case. They allege that Buckley is inapplicable because the $25,000 aggregate limit in the 

original Federal Election Campaign Act (“FECA”) was subsequently amended by the Bipartisan 

Campaign Reform Act (“BCRA”), Pub. L. No. 107–155, § 307, 116 Stat. 81 (2002). See 

Memorandum in Support of Motion for Preliminary Injunction (June 22, 2012) at 8 (“Pls.’ Br.”). 

But the post-BCRA aggregate limits at issue here are identical in substance to the original 

$25,000 aggregate limit, differing only in the dollar size of the limit and the time period covered. 

Equally unsuccessful is plaintiffs’ attempt to distinguish Buckley by arguing that Buckley

concerned a facial challenge: many of plaintiffs’ claims here also request that the aggregate 

limits be declared facially unconstitutional or seek comparable relief. 

In actuality, the crux of plaintiffs’ case is that they want the Buckley holding 

reconsidered, an action that lies beyond the scope of this court’s authority. Plaintiffs contend 

that the governmental interests that were found to justify the $25,000 aggregate limit in 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 7 of 36
2

Buckley—namely, preventing corruption and the appearance of corruption, and preventing 

circumvention of the contribution limits—have been adequately addressed by subsequent 

amendments to FECA, rendering the aggregate limits superfluous. This argument, however, 

requires plaintiffs to adopt a stance of willful blindness to the likely consequences of invalidating 

the aggregate limits. 

The elimination of the aggregate limits would eviscerate the longstanding limits on 

contributions by individuals to candidates, political parties and political committees under 

federal law. As outlined in Section I infra, absent the aggregate limits, a single donor could give 

a total of more than $3.5 million in contributions in a single two-year election cycle to the three 

national party committees, fifty state party committees and 468 candidate committees connected 

to their preferred political party. Through the mechanism of joint fundraising, wealthy donors 

need not assume the burden of making hundreds of separate contributions, but rather can write a 

single multi-million dollar check to a joint fundraising committee created by their party. In 

short, any serious review of the probable effects of invalidating the aggregate limits demonstrates 

that those limits are vital to preventing corruption and the appearance of corruption. 

In addition to turning a blind eye to the corruption that would likely ensue if the 

aggregate limits were invalidated, plaintiffs are simply wrong in claiming that the 1976 

amendments to FECA following the Buckley decision resolved the circumvention concerns that 

the aggregate limit was devised to address. As discussed in Section II infra, plaintiffs claim 

incorrectly that the Buckley Court upheld the $25,000 aggregate limit only because of its concern 

that a wealthy donor could otherwise channel a “massive” contribution through a political party 

committee or PAC to the candidate of his choice. Pls.’ Br. at 10–11. But the $25,000 aggregate 

limit was not enacted to block a donor from funneling one massive contribution through a party 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 8 of 36
3

committee or PAC, but rather from using a massive number of such entities as pass-through 

conduits for multiple contributions. Plaintiffs fail to apprehend the specific type of 

circumvention that the aggregate limits were meant to address. 

For all these reasons, plaintiffs have failed to demonstrate a likelihood of success on the 

merits of their claims, and this Court should deny their motion for a preliminary injunction. 

ARGUMENT 

I. Elimination of the Aggregate Contribution Limits Would Eviscerate the Individual 

Contribution Limits and Allow Donors to Make Massive Contributions to Benefit 

the Political Party and Candidates of Their Choice. 

Plaintiffs contend that the aggregate contribution limits are unnecessary and therefore 

unconstitutional because adherence to FECA’s other contribution limits eliminates any risk of 

corruption or the appearance of corruption. That assertion is demonstrably at odds with the 

foreseeable consequences of removing the aggregate limits. The invalidation of the aggregate 

limits would, as a practical matter, gut the federal contribution limits and upend FECA’s 

defenses against quid pro quo corruption. 

A. Absent the Aggregate Limits, a Single Donor Could Contribute Millions of 

Dollars to Federal Candidates and Party Committees. 

Under current law, the limit for contributions by an individual to a federal candidate is 

$2,500 per election (and thus, a total of $5,000 to a single candidate for a primary and general 

election in a two-year election cycle). 2 U.S.C § 441a(a)(1)(A); 11 C.F.R. § 110.1(b).1

 The limit 

for contributions by an individual to a national political party committee is $30,800 per year. 2 

U.S.C. § 441a(a)(1)(B); 11 C.F.R. § 110.1(c)(1). This $30,800 annual limit applies separately to 

each of the three federal committees of a political party—the national party committee (e.g., the 

 

1

 The dollar limits in the statute set by BCRA are indexed for inflation, 2 U.S.C. §441a(c), and are 

thus now higher than the amounts that appear on the face of the statute. See FEC, Contribution Limits for 

2011-2012, http://www.fec.gov/pages/brochures/contriblimits.shtml (last visited July 9, 2012). 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 9 of 36
4

RNC or DNC), that same party’s Senate campaign committee, and that same party’s House 

campaign committee. 11 C.F.R. § 110.1(c)(3). The limit on contributions by an individual to a 

state political party committee is $10,000 per year, and this limit applies separately to each of the 

50 state parties. 2 U.S.C. § 441a(a)(1)(D), 11 C.F.R. § 110.1(c)(5). Lastly, individuals may give 

up to $5,000 to a multicandidate political committee (or “PAC”) per year. 2 U.S.C § 

441a(a)(1)(C). 

All of these contributions subject to the federal limits (i.e., “hard money”) are also 

subject to the umbrella aggregate limits of 2 U.S.C. § 441a(a)(3). See also 11 C.F.R. §110.5. 

All contributions by an individual to federal candidates are capped at an aggregate of $46,200 on 

a biennial basis (“$46,200 aggregate limit”), 2 U.S.C. § 441a(a)(3)(A), and all contributions by 

an individual to non-candidate political committees (including party committees) are capped at 

$70,800 biennially (“$70,800 aggregate limit”), id. § 441a(a)(3)(B). 

These aggregate limits are crucial to making the individual contribution limits effective. 

Without the $46,200 aggregate limit, a single donor could contribute $5,000 to every Republican 

or Democratic House and Senate candidate in an election cycle. In the aggregate, a wealthy 

individual could contribute $2,340,000 to all the federal candidates of one party (given 468 

federal elections per cycle, not including run-offs or presidential candidates). 

 Eliminating the $70,800 aggregate limit would enable a single donor to give similarly 

massive contributions to party committees. By contributing $30,800 to each of a party’s three 

federal party committees each year, a single donor could give $184,800 to just the federal party 

in a two-year election cycle. The same donor could give $1 million dollars to that party’s state 

committees by contributing $10,000 a year (or $20,000 in a two-year cycle) to each of that 

party’s 50 state committees. By this means, a single wealthy donor could contribute $1,184,800 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 10 of 36
5

to one party’s committees in a single election cycle. Combined with the contributions that the 

same donor could make directly to that party’s candidates, a single donor could provide 

$3,524,800 in “limited” hard money contributions to a party and its federal candidates in a single 

election cycle. 

 And the number would be twice that amount for donors who like to hedge their political 

bets by seeking influence on both sides of the aisle, a common phenomenon recognized by the 

Supreme Court in McConnell v. FEC, 540 U.S. 93, 138 (2003) (“Particularly telling is the fact 

that . . . more than half of the top 50 soft-money donors gave substantial sums to both major 

national parties, leaving room for no other conclusion but that these donors were seeking 

influence, or avoiding retaliation, rather than promoting any particular ideology.”). Any such 

donor could make contributions aggregating over $7 million, were plaintiffs to succeed here.2

 

 It is only the aggregate limit on hard money contributions that prevents such massive and 

plainly corrupting donations from flowing from those seeking to buy influence with federal 

candidates and party leaders. Eliminating the aggregate limit would quickly result in a system of 

multi-million dollar contributions to parties that would be indistinguishable from the system of 

“soft money,” i.e., funds not subject to the federal contribution limits, that was shut down by the 

enactment of BCRA in 2002. 

 

2

 Finally, the same individual could also contribute an indeterminate—but potentially vast—total 

amount to PACs aligned with their partisan or ideological interests. As of March 31, 2012, there were

1,987 nonconnected PACs registered with the FEC (not including independent-expenditure-only and 

hybrid PACs). See FEC, Summary of PAC Activity Through March 31 of the Election Year, 

http://fec.gov/press/summaries/2012/ElectionCycle/file/pac_financial_activity/Q1/PAC1q12012.pdf (last 

visited July 9, 2012). If roughly half of those committees generally support each party, an individual 

could give those PACs close to $10 million in a two-year election cycle. Even assuming that only 10% of 

such committees are aligned with a given donor’s views, that donor could still give nearly $2 million.

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 11 of 36
6

B. The Use of Joint Fundraising Committees and Internal Party Transfers 

Would Enable Donors to Give Massive Contributions With a Minimum of 

Effort. 

It is not at all far-fetched to foresee the return of multi-million dollar contributions in the 

absence of aggregate limits, because the law has mechanisms already in place that would 

facilitate a party’s efforts to raise, organize, direct and spend such money. While it sounds 

cumbersome to expect a donor to write hundreds of separate checks, each under a separate hard 

money limit, that is not how it would work. 

Instead, a party would set up a “joint fundraising committee,” a common and frequently 

employed fundraising device that has its own section in the FEC rules. See 11 C.F.R. § 102.17. 

Simply put, a joint fundraising committee allows two or more political committees to combine 

their fundraising efforts and accept a single check from a donor that is then “split” between the 

participating committees and attributed to the contribution limit of each committee. “The 

participants in joint fundraising activities may include political party committees . . . candidate 

committees [and] multicandidate committees . . . .” Id. § 102.17(a)(2). The joint committee 

provides notice to potential donors as to the identity of its participating committees and how the 

donations will be allocated. Id. § 102.17(c)(2). A donor may make a contribution to the joint 

fundraising committee equaling the “total amount that the contributor could contribute to all of 

the participants under the applicable limits . . . .” Id. § 102.17(c)(5). 

Using this mutually beneficial arrangement, parties and candidates can consolidate their 

fundraising efforts without running afoul of contribution limits. Most importantly, donors are 

relieved of the logistical challenge of making separate contributions to an array of different 

committees, and instead can simply write one check to the joint fundraising entity and receive 

immediate recognition for their largesse. Thus, by combining the allure of candidate access with 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 12 of 36
7

higher-limit party committees, joint fundraising enables and encourages donors to give large 

sums consisting of multiple hard money contributions. 

In its simplest iteration, for example, a presidential candidate could form a joint 

fundraising committee with the candidate’s national party and raise $35,800 in a single check, of 

which $5,000 would be dispersed to the candidate and $30,800 would go to the national party 

committee. Variants of this model were used by both the Obama and McCain campaigns in the 

2008 Presidential election. For example, then-presidential nominee Barack Obama and the DNC 

established a joint fundraising committee that could accept checks of over $33,000.

3

 Thenpresidential nominee John McCain was connected to a somewhat more complex joint fundraising 

effort involving the RNC, certain state Republican parties, and his campaign’s compliance fund 

that accepted as much as $70,000 per donor.4

 

 Remove the aggregate limits, however, and the joint fundraising committee is in the 

business of receiving single checks of astronomical amounts from individual donors. The three 

national party committees could combine to receive checks of $92,400 (with $30,800 applied to 

the contribution limit of each committee). Nothing would prevent the party committees from 

adding multiple state parties to increase that aggregate amount by $10,000 per state party 

participant. Indeed, nothing would prevent the 50 state parties from forming a joint fundraising 

 

3

 Instead of contributing to the Obama campaign and the DNC separately, donors wrote one 

generous checks of up to $33,100—and pursuant to 2008 contribution limits, $28,500 went to the DNC 

and two contributions of $2,300 went to the Obama campaign (for the primary and general election). 

Michael Luo and Griff Palmer, In Fine Print, a Proliferation of Large Donors, N.Y. Times, Oct. 20, 

2008, available at http://www.nytimes.com/2008/10/21/us/politics/21donate.html. 

4

 Matthew Mosk, McCain Able to Skirt Limits of Federal Financing, Wash. Post., Sept. 17, 2008, 

available at http://www.washingtonpost.com/wpdyn/content/article/2008/09/16/AR2008091603321.html. For more on the multiple joint fundraising 

committees established by both Presidential nominees in the 2008 election, see also Center for 

Responsive Politics, Joint Fundraising Committees, 

http://www.opensecrets.org/pres08/jfc.php?cycle=2008 (last visited July 9, 2012). 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 13 of 36
8

committee that could receive checks for $500,000 from each willing donor, with each check 

returned in $10,000 increments to each of the participating state parties. 

Once divided between the participating committees, however, the money can easily be 

routed back to a single party committee. Federal law allows for unrestricted transfers between, 

inter alia, national and state party committees of the same party; affiliated committees; and joint 

fundraising committee participants. See 2 U.S.C. § 441a(a)(4); 11 C.F.R. § 110.3(c). Thus, the 

joint fundraising committee for the 50 state parties could take a donor’s $500,000 check and 

“allocate” that money back to each of the participating state parties in order to attribute it to each

state party’s $10,000 contribution limit. And the state parties could then each transfer the 

$10,000 amount to their national party committee. Because nothing prevents these allocations 

and transfers from being done electronically and instantaneously, the donor’s $500,000 check 

made out to “State Joint Fundraising Committee” could quickly end up, as a practical matter, 

being deposited in the national party committee’s bank account. 

Thus, through joint fundraising and unlimited party-to-party transfers, an entity such as 

the DNC could aggregate the contributions up to a total of $1,184,800 that are given to multiple 

party committees by one donor. Because the availability of joint fundraising streamlines this 

process so effectively, that $1,184,800 contribution can be made with a single check, distributed 

electronically to all recipient party committees in accordance with applicable contribution limits, 

and then transferred back to the DNC’s account in a matter of moments. Millions of dollars in 

separate contributions can thus be donated, disaggregated, transferred, re-aggregated and placed 

at the party’s disposal almost immediately. Absent the aggregate limits, none of this would 

violate the law. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 14 of 36
9

C. Invalidation of the Aggregate Limits Would Reinvigorate the Practice of Soft 

Money Solicitations by Federal Candidates and Officeholders, Thereby 

Recreating the Corruptive Practices That Necessitated the Enactment of 

BCRA. 

Eliminating the aggregate limits would also cripple the prohibition on the solicitation of 

soft money by federal candidates and officeholders added by BCRA and upheld by the Supreme 

Court in McConnell. Absent the aggregate limits, candidates would be able to solicit donors for 

huge sums of money that in appearance and effect would be the equivalent of soft money 

donations, but would treated as the aggregation of numerous “hard money” contributions—even 

if they collectively totaled millions of dollars. 

BCRA amended FECA to provide that national party committees and federal 

officeholders and candidates “may not solicit, receive, or direct to another person a contribution, 

donation or transfer of funds or any other thing of value, or spend any funds, that are not subject 

to [FECA’s] limitations, prohibitions, and reporting requirements . . . .” 2 U.S.C. § 441i(a)(1), 

(e)(1).5 As the Court noted in McConnell, “Though the candidate may not ultimately control how 

the funds are spent, the value of the donation to the candidate or officeholder is evident from the 

fact of the solicitation itself.” 540 U.S. at 182–83. 

 These solicitation restrictions would be functionally nullified if the aggregate limits were 

to be invalidated. Because one donor would be able to give a joint fundraising committee a 

single check for a million dollars or more in funds that are subject to FECA’s hard money 

“limitations,” candidates would be able to solicit eye-popping sums while technically remaining 

in compliance with the solicitation restriction. Eliminating the aggregate limits would herald the 

 

5

 The restriction applies not only to candidates and parties, but also to their officers and agents, as 

well as to “any entity that is directly or indirectly established, financed, maintained, or controlled” by 

such committee or candidate. 2 U.S.C. § 441i(a)(2), (e)(2). 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 15 of 36
10

return to an era when enormous contributions to parties and candidates were freely solicited and 

often given by donors explicitly seeking favors from elected officials. 

 Finally, it is likely that candidates and parties would work together to ensure that 

candidates who solicit large amounts for their parties would also be the beneficiaries of the 

spending by their parties. In a very practical sense, the candidates would be soliciting massive 

contributions for their own benefit. 

Thus, in a regime without aggregate limits, one can foresee a scenario in which a joint 

fundraising committee could be set up by a candidate, the three national committees and 50 state 

committees of a party. In the absence of aggregate limits, this joint fundraising committee will 

be able to raise very large aggregate donations—over $1 million from a single donor. As 

significantly, a candidate or officeholder will be able to solicit donors for this amount, since such 

contributions will be within the contribution “limitations” under FECA and thus not subject to 

the solicitation restrictions. Once allocated to the participating party committees, the donations 

can then be transferred to a single party committee, either state or national, where the funds can 

be spent, through coordinated or independent expenditures, or a combination of both, on behalf 

of the candidate who participated in the joint fundraising effort and solicited the money. 6

Using these mechanisms, none of which are unusual under existing law, a candidate 

would be able to solicit massive contributions for his own campaign, by simply directing the 

 

6

 National and state party committees can make both coordinated expenditures with their 

candidates and independent expenditures on behalf of their candidates. See 2 U.S.C. § 441a(d); 11 C.F.R. 

§ 109.32. “Coordinated party expenditures” do not count against the party’s contribution limits, but are 

subject to a different and higher set of limits: $21,684,200 for Presidential nominees; a range from 

$91,200 to $2,593,100 for Senate nominees; and $45,600 or $91,200 for House nominees (depending on 

how many representatives allocated to the state). 2 U.S.C. § 441a(d). FEC, Coordinated Party 

Expenditure Limits 2012, http://www.fec.gov/info/charts_441ad_2012.shtml (last visited July 9, 2012). 

Once the coordinated spending limit is reached, parties can make unlimited “independent” expenditures in 

support of a candidate. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 16 of 36
11

money through a party joint fundraising committee with the understanding or expectation that 

the party committees would organize and spend the money for that candidate’s benefit; indeed, 

to the extent the party would use the money for coordinated expenditures, the candidate himself 

would be effectively spending the money on his own behalf. 

These scenarios are not fanciful. The history of campaign finance shows that when it 

comes to maximizing the raising and spending of campaign money, what can be done will be 

done. It is only the aggregate limit that now acts as the critical bulwark against such easy and 

open circumvention of the underlying contribution limits. 

II. The Aggregate Limits Are Constitutional. 

A. The Buckley Decision Controls This Case. 

In challenging the aggregate limits, plaintiffs are in effect challenging Buckley, where the 

Supreme Court directly considered and rejected a facial challenge to the former $25,000 limit on 

aggregate contributions by an individual in a calendar year. 424 U.S. at 38. 

Although the Court did not make explicit the level of scrutiny it applied to the $25,000 

limit, it was clear from the structure of the decision that the Court did not apply strict scrutiny to

the contribution limits that it reviewed in that case—the $1,000 individual limit, the $5,000 

multicandidate PAC limit, and the $25,000 aggregate limit. The Court began its review with a 

thorough analysis of the different burdens on speech posed by contributions limits and 

expenditure limits, concluding that contribution limits “entail[] only a marginal restriction upon 

the contributor’s ability to engage in free communication,” and therefore would be sustained “if 

the State demonstrates a sufficiently important interest and employs means closely drawn to 

avoid unnecessary abridgment of associational freedoms.” Id. at 20, 25. Following this preface, 

the Court reviewed the three challenged contribution limits consecutively, see id. at 23–39, 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 17 of 36
12

clearly applying the same “closely drawn” level of scrutiny to all three. Plaintiffs’ request here 

for strict scrutiny review of the aggregate limits therefore has no basis. See Pls.’ Br. at 5–6, 34.7

 

Applying closely drawn scrutiny, the Buckley Court found that the $25,000 aggregate 

limit was justified by the governmental interest in preventing circumvention of FECA’s other 

contribution limits, specifically of the $1,000 limit on individual contributions to candidates. 

The Court explained: 

But this quite modest restraint [i.e., the $25,000 aggregate limit] upon protected 

political activity serves to prevent evasion of the $1,000 contribution limitation by 

a person who might otherwise contribute massive amounts of money to a 

particular candidate through the use of unearmarked contributions to political 

committees likely to contribute to that candidate, or huge contributions to the 

candidate's political party. The limited, additional restriction on associational 

freedom imposed by the overall ceiling is thus no more than a corollary of the 

basic individual contribution limitation that we have found to be constitutionally 

valid. 

424 U.S. at 38. 

Although the aggregate limits at issue here are simply an updated version of the $25,000 

aggregate limit upheld in Buckley, plaintiffs nevertheless dispute that Buckley is controlling here. 

First, plaintiffs contend that Buckley does not apply because the $25,000 aggregate limit

was amended by BCRA in 2002. But BCRA did not change the aggregate limit in any material 

respect; rather, it merely raised the aggregate ceiling to $37,500 for contributions to candidate 

committees and to $57,500 for contributions to non-candidate committees (both indexed for 

inflation), and changed the operative time period from one to two years. BCRA § 307(b), 116 

Stat. 102–03. Because the Court’s decision to uphold the original $25,000 aggregate limit did 

not turn on the limit’s dollar amount or temporal scope, any revisions to these aspects of the limit 

 

7

 Underscoring the weakness of their claim for strict scrutiny, plaintiffs must resort to asking this 

Court to reconsider Supreme Court precedent establishing a less rigorous standard of review for 

contributions. Pls.’ Br. at 5–6 (stating that “to the extent that Buckley is interpreted as imposing lowered 

scrutiny on contribution limits than on expenditure limits, [plaintiffs] expressly call for the 

reconsideration of Buckley”). 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 18 of 36
13

do not affect the applicability of Buckley to the post-BCRA aggregate limits. Indeed, pursuant to 

plaintiffs’ reasoning, Buckley also would not govern the review of the limit on contributions by 

individuals to candidates, because BCRA raised this limit from $1,000 to $2,000. Id. § 

307(a)(1). This is simply not a credible argument. 

Plaintiffs also mention that they bring an as-applied challenge to the aggregate limits 

whereas Buckley reviewed the facial constitutionality of the $25,000 aggregate limit. But 

plaintiffs also bring a facial challenge to the aggregate limits, and seek comparable relief. 

Pursuant to their own reasoning, plaintiffs would have to concede that their facial challenge is 

directly foreclosed by Buckley. See Compl., Counts II, III, V. Further, for the reasons discussed 

below, plaintiffs fail to demonstrate that contributions to any particular type of political 

committee, e.g., the national party committees, pose a lesser potential for corruption and 

therefore should be exempted from the aggregate limit on an as-applied basis. 

Finally, plaintiffs attempt to escape Buckley by arguing that Congress “materially altered” 

the “statutory context” of the $25,000 aggregate limit following Buckley, and that these 

alterations sufficiently resolved the circumvention problems so that the aggregate limit is no 

longer necessary. Pls.’ Br. at 8. For the reasons discussed below, these statutory alterations did 

not resolve the corruption and circumvention concerns that the $25,000 aggregate limit was 

enacted to address. In short, plaintiffs effectively ask this court to disregard settled Supreme 

Court precedent, but provide no valid reason for such a departure. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 19 of 36
14

B. The Governmental Interests That Were Found in Buckley to Support the 

Constitutionality of the Original $25,000 Aggregate Limit Also Support the 

Post-BCRA Aggregate Limits. 

Buckley controls this case. But even if Buckley was found not to do so, the governmental 

interests identified in Buckley that justify the $25,000 aggregate limit likewise justify the latest 

iteration of that limit—the aggregate limits at issue here. 

1. The Aggregate Limits Directly Serve the Governmental Interest in 

Preventing Quid Pro Quo Corruption and the Appearance of 

Corruption. 

Plaintiffs challenge the $70,800 aggregate limit on its face and as applied to national 

party committees, and the $46,200 aggregate limit on its face. Both limits, however, directly 

advance the governmental interest in preventing actual and apparent quid pro quo corruption and 

should be upheld on this basis. 

a. The $70,800 Aggregate Limit on Contributions to Party 

Committees and PACs 

Invalidation of the $70,800 aggregate limit would allow a single individual to donate over 

a million dollars to a political party’s national and state party committees in a two-year election 

cycle. Indeed, through the mechanism of joint fundraising, a wealthy donor could cut a single $1 

million check to a joint fundraising committee created by her preferred party and that money 

could be spent to benefit the officeholder who solicited the contribution. And this calculation 

does not even take into account the almost limitless number of PACs potentially aligned with the 

donor’s party to which the donor could also direct contributions. Plaintiffs’ assertion that an 

individual’s donation of millions of dollars for the benefit of one political party does not raise the

potential for quid pro quo corruption simply does not pass the laugh test. 

Although Buckley’s discussion of the $25,000 aggregate limit focused primarily on how 

the limit served the anti-circumvention interest in protecting other contribution limits enacted to 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 20 of 36
15

prevent corruption, later cases made clear that the aggregate limits also directly furthered the 

government’s anticorruption interest. In California Medical Ass’n v. FEC (CalMed), 453 U.S. 

182 (1981), the Supreme Court explained that Buckley had upheld the limits on contributions 

from individuals and PACs to candidates and the $25,000 aggregate limit because “such 

limitations served the important governmental interests in preventing the corruption or 

appearance of corruption of the political process that might result if such contributions were not 

restrained.” Id. at 195 & n.15 (emphasis added). 

Plaintiffs also advance a more targeted attack on the $70,800 aggregate limit, challenging 

it as applied to only the national party committees. Even this fallback position, however, would 

allow a single individual to donate, and an officeholder to solicit, enormous sums of money to 

support his preferred political party or candidate, raising the specter of actual and apparent 

corruption. As discussed in Section I, absent the aggregate limits, an individual could contribute 

a total of $184,800 to the three national committees of a major political party in a two-year 

election cycle. See Section I.A. supra. Furthermore, in addition to this $184,800, plaintiffs 

propose that a donor also be permitted to meet his $46,200 sub-limit for contributions to state 

party committees and PACs, bringing the grand total of potential contributions to party 

committees to over $225,000. See Pls.’ Br. at 29. 

Furthermore, FECA permits these contributions to be transferred between the national 

party committees and between the national and state committees without restriction, and thus 

these contributions could be aggregated in the account of one recipient committee. Plaintiffs’ 

allegations that these national committees have different “agendas” and “focuses” thus lack any 

import, Pls.’ Br. at 18–19, because the transfer provisions of FECA ensure that the formal 

independence of the committees has no functional meaning. And where the contribution is 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 21 of 36
16

solicited by an officeholder from a donor supporting that officeholder, the money can easily end 

up in one party committee to be spent to support that officeholder. 

The corruptive potential of a $225,000 sum is self-evident. The only reason offered by 

plaintiffs as to why this would not be the case is their sweeping claim that “the anticorruption 

interest does not apply to contributions to national party committees.” Pls.’ Br. at 13. This claim 

is demonstrably false, and has already been rejected by the Supreme Court. 

Plaintiffs ignore the McConnell decision. There, the Supreme Court upheld the limits on 

contributions to national and state party committees, as well as restrictions on the solicitation of 

soft money contributions by candidates, officeholders and party officials, because those limits 

and restrictions advanced the government’s interest in preventing corruption and the appearance 

of corruption. The McConnell Court recognized that contributions to a candidate’s party could 

create a sense of obligation no less than a direct contribution to the candidate himself, 540 U.S. 

at 144–45, and noted that “[t]his is particularly true of contributions to national parties, with 

which federal candidates and officeholders enjoy a special relationship and unity of interest.” Id. 

at 145. Because of this “close affiliation,” the national parties are placed “in a unique position, 

‘whether they like it or not,’ to serve ‘as agents for spending on behalf of those who seek to 

produce obligated officeholders.’” Id. (quoting FEC v. Colorado Republican Federal Campaign 

Committee (Colorado II), 533 U.S. 431, 452 (2001)). After surveying the voluminous record 

compiled by Congress in support of the soft money limits, the McConnell Court concluded that 

that “there is substantial evidence to support Congress’ determination that large soft-money 

contributions to national political parties give rise to corruption and the appearance of 

corruption.” Id. at 154 (emphasis added). 

Further, the Supreme Court in no way altered this holding in Citizens United v. FEC, 130 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 22 of 36
17

S. Ct. 876 (2010), as plaintiffs suggest. Pls.’ Br. at 13. To the contrary, the Supreme Court 

recently reaffirmed this McConnell holding when, after Citizens United, it summarily affirmed a 

three-judge district court decision that sustained BCRA’s restrictions on party soft money. RNC 

v. FEC, 698 F. Supp. 2d 150 (D.D.C.), aff’d, 130 S. Ct. 3544 (2010) (mem.). 

McConnell thus makes clear that large contributions to the national party committees are 

potentially corruptive. Despite this unequivocal holding, plaintiffs propose to allow individuals 

to contribute six times this amount in a two-year election cycle, and they offer no justification 

beyond the unsupported—and unsupportable—statement that “the anticorruption interest does 

not apply to contributions to national party committees.”8

 This proposition squarely contradicts 

the holding of McConnell, and to adopt this position would effectively require this court to 

overrule Supreme Court precedent. 

b. The $46,200 Aggregate Limit on Contributions to Candidate 

Committees 

Although plaintiffs concede that “an anti-corruption interest may justify contribution 

limits,” they argue that this interest is not relevant to the $46,200 aggregate limit “because the 

biennial limit does not apply to any contribution to a particular candidate . . . and McCutcheon’s 

contributions will be within the base contribution limits.” Pls.’ Br. at 35. 

 

8

 The only legal support proffered by plaintiffs in support of this statement are out-of-context 

quotes and concurrences from Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 

(1996) (“Colorado I”). See Pls.’ Br. at 13–14 (citing Colorado I, 518 U.S. at 616 (“We are not aware of 

any special dangers of corruption associated with political parties . . . .”) (Breyer, J., joined by O’Connor 

& Souter, JJ.); and id. at 646 (“As applied in the specific context of campaign funding by political parties, 

the anti-corruption rationale loses its force . . . .”) (Thomas, J., joined by Rehnquist, C.J., and Scalia, J., 

concurring in judgment and dissenting)). But Colorado I addressed the question of whether a party’s 

independent expenditures can be limited, not whether contributions in excess of the federal limits to 

parties give rise to corruption concerns. It is thus inapplicable here. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 23 of 36
18

Plaintiffs are deliberately missing the point. To be sure, donors are bound by the $2,500 

“base limit” as to their contributions to particular candidates, but plaintiffs disregard the 

collective impact that up to 468 of such “limited” contributions from a single donor will 

potentially have on the political system. Elimination of the $46,200 aggregate limit would allow 

a single donor to make over $2 million in contributions to the candidates of her favored party. 

See Section I supra. As was the case with soft money contributions to parties, “[i]t is not only 

plausible, but likely, that candidates would feel grateful for such donations and that donors 

would seek to exploit that gratitude.” McConnell, 540 U.S. at 145. 

Plaintiffs also fail to apprehend that the law allows candidates to transfer funds to party 

committees without restriction. This freedom means that multiple contributions made by a single 

donor can be aggregated for the benefit of a “particular candidate” by transfer of the funds to a 

party committee. See also Section II.B.2 infra. Thus, while it is technically true that “the 

biennial limit does not apply to any contribution to a particular candidate,” as plaintiffs state, the

$46,200 aggregate limit does apply to prevent multiple contributions from a single donor from 

being aggregated for a “particular candidate.” 

Finally, plaintiffs fail to acknowledge the substantial threat of corruption posed by a 

candidate’s solicitation of numerous “limited” contributions from a single donor. Just as 

solicitations by candidates for huge soft money contributions was found by the McConnell Court 

to pose a danger of corruption or the appearance of corruption, so too would candidates’ 

solicitation of donors for possibly millions of dollars of hard money contributions give rise to 

corruption and the appearance of corruption. As articulated in McConnell: “Large soft-money 

donations at a candidate’s or officeholder’s behest give rise to all of the same corruption 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 24 of 36
19

concerns posed by contributions made directly to the candidate or officeholder.” 540 U.S. at 

182. 

2. The Aggregate Limits Block Circumvention of the Individual 

Contribution Limit and Other FECA Contribution Limits. 

As argued above, the aggregate limits directly prevent corruption and the appearance of 

corruption by ensuring that a donor cannot gain undue influence over candidates and 

officeholders by making an enormous aggregate amount of “hard money” contributions. 

However, as explained by Buckley, the aggregate limits also advance the government’s related 

interest in preventing circumvention of the individual contribution limits by persons who seek to 

funnel money to benefit their favored candidate by making “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. 

a. The $70,800 Aggregate Limit on Contributions to Party 

Committees and PACs 

Plaintiffs do not contest that Buckley explicitly sustained the aggregate $25,000 limit on 

grounds that it deterred evasion of the individual contribution limits. Pls.’ Br. at 8–10. They 

maintain, however, that the Court was motivated not by a broad concern about potential 

circumvention, but rather by much narrower fears of so-called “political committee proliferation” 

and “massive contributions.” Pls.’ Br. at 17–22. Because, according to plaintiffs, these narrower 

fears were addressed by the amendments to FECA following Buckley, the $70,800 aggregate 

limit is no longer necessary to maintain the integrity of the contribution limits, and consequently 

represents a “prophylaxis on prophylaxis” approach to circumvention forbidden under the First 

Amendment. Pls.’ Br. at 14–15. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 25 of 36
20

This argument fails on multiple levels. First, plaintiffs’ suggestion that the Buckley Court 

was motivated only by fears of “political committee proliferation” and “massive contributions” is 

pure invention. Second, the post-Buckley amendments that plaintiffs highlight did not in fact 

“solve” the circumvention concerns raised by the Buckley Court. Finally, plaintiffs have no 

support for their fundamental theory that the mere existence of one law to prevent circumvention 

necessarily renders other anti-circumvention measures unconstitutional. 

First, with respect to Buckley’s expressed concern about circumvention schemes 

involving “unearmarked contributions to political committees likely to contribute to [a favored] 

candidate,” plaintiffs claim that the Supreme Court was really only “specifically concerned” 

about donors giving to a “proliferation of political committees,” which plaintiffs define as 

multiple committees controlled by a single individual or entity. Pls.’ Br. at 17–18. Plaintiffs 

conclude their argument by claiming that the 1976 Amendments to FECA and the affiliation 

rules adopted by the FEC fully addressed this issue, and therefore rendered the $70,800 

aggregate limit redundant. FECA Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 

(1976); 11 C.F.R. §§ 105(g), 110.3(b). 

The problem with this argument is that the Court did not mention “political-committee 

proliferation” in its analysis of the $25,000 aggregate limit. See Buckley, 424 U.S. at 38. It 

certainly did not suggest that affiliated political committees under common control represented 

the only avenue for circumvention. Plaintiffs’ fixation on this issue is inexplicable. The Court’s 

decision to uphold the $25,000 aggregate limit was instead animated by the far broader concern 

that that donors seeking to give contributions in excess of the federal limits to their favored 

candidate would simply channel “unearmarked contributions to political committees likely to 

contribute to that candidate” in order to multiply their giving to such candidate. Indeed, the 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 26 of 36
21

inapplicability of “political-committee proliferation” to the analysis of the $25,000 aggregate 

limit is underscored by the fact that the only textual support plaintiffs offer is imported from an 

entirely different section of Buckley that concerns the $1,000 individual contribution limitation. 

Pls.’ Br. at 17–18 (citing Buckley, 424 U.S. at 28 n.31). In short, the Buckley Court in no way 

premised its approval of the $25,000 aggregate limit solely on the issue of “political-committee 

proliferation.” That FECA was subsequently amended to address affiliated committees is 

therefore irrelevant to the continued need for an aggregate limit as a bulwark against 

circumvention. 

Second, plaintiffs contend that the Buckley Court was concerned only with circumvention 

involving “massive contributions” in upholding the $25,000 aggregate limit, an amount which 

plaintiffs unilaterally declare means something like “$30,800,000.” Pls.’ Br. at 20.9

 Plaintiffs 

 

9

 Plaintiffs also argue that the aggregate limits are simply “too low” pursuant to Randall v. 

Sorrell, 548 U.S. 230 (2006), because they fail to meet, with mathematical precision, the contributionlimit-to-population ratio considered there. See Compl., Counts III, V. 

As a threshold matter, Randall did not consider aggregate limits, only “base limits” on individual 

and other contributions to candidates and thus is inapplicable to this case. Even if Randall is relevant, 

however, plaintiffs’ argument is wholly unsuccessful. 

First, plaintiffs base their argument on a mathematical equation that has no basis in law. In so 

arguing, plaintiffs ignore the principle articulated in Buckley that “a court has no scalpel to probe” or finetune complex legislative enactments. 424 U.S. at 30. Once “satisfied that some limit on contributions is 

necessary,” courts must subordinate their policy judgments for those of the legislature. Id. The Supreme 

Court in Randall echoed this view of relative institutional competence: 

We cannot determine with any degree of exactitude the precise restriction necessary to 

carry out the statute’s legitimate objectives. 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. 

548 U.S. at 248 (citing McConnell, 540 U.S. at 137). By suggesting that the constitutionality of a 

contribution limit can be discerned through mathematical calculations, as opposed to legislative expertise 

in the financing of elections, plaintiffs attempt to reduce constitutional analysis to simple arithmetic. Pls.’ 

Br. at 36. 

Further, their assertion that the biennial limits are too low rests on an incomplete review of 

Randall. There, the Court identified numerous factors suggesting that Vermont’s contribution limits were 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 27 of 36
22

then assert that the Court’s concern with such “massive” circumvention was alleviated by the 

enactment of additional contribution limits after the Buckley decision and that consequently the 

$70,800 aggregate limit is now superfluous. Pls.’ Br. at 10–11. 

Plaintiffs’ argument fails because it relies on an incomplete description of the statutory 

background of the Buckley decision. Plaintiffs highlight that at the time of Buckley, FECA 

imposed no limits on contributions to political party committees or to PACs, which would have 

allowed a donor to make unlimited contributions to these committees but for the $25,000 

aggregate limit. Pls.’ Br. at 19–20. They suggest that Buckley’s concern with “massive” 

circumvention stemmed from this freedom to make unlimited contributions to parties and PACs, 

insinuating that at the time of Buckley, donors could have funneled unlimited funds through these 

entities to the candidates of their choice absent the aggregate limit. The 1976 Amendments to 

FECA, plaintiffs argue, added new contribution limits, including a $20,000 per year limit on 

 

not closely drawn. Among these “danger signs,” the Court emphasized the fact that Vermont’s $200-percycle limit—the lowest in the nation—applied “both to contributions from individuals and to 

contributions from political parties.” Id. at 249. Vermont’s contribution ceilings also applied to 

coordinated party expenditures and to “virtually all the affiliates of a political party,” and were not 

indexed for inflation—further distinguishing them from FECA’s comparatively moderate limits. Id. at 

257. In fact, the contribution limits struck down in Randall were more restrictive than the federal limits 

in almost every respect. 

The Vermont statute’s strict cap on contributions from parties to candidates, and its failure to treat

parties and individuals differently, was an explicit basis for its invalidation. See id. at 254 (“We reach 

this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the 

statute’s effect on political parties.”). By contrast, when discussing the federal limits on party 

contributions to candidates upheld in FEC v. Colorado Republican Federal Campaign Committee

(Colorado II), 533 U.S. 431 (2001), the Court noted approvingly: 

[The limits] were much higher than the federal limits on contributions from individuals to 

candidates, thereby reflecting an effort by Congress to balance (1) the need to allow 

individuals to participate in the political process by contributing to political parties that 

help elect candidates with (2) the need to prevent the use of political parties “to 

circumvent contribution limits that apply to individuals.” 

Randall, 548 U.S. at 258–59 (quoting Colorado II, 533 U.S. at 453). As discussed in Section II.B. supra, 

the federal aggregate contribution limits perform a vital anti-circumvention function. Far from being

contrary to Randall, they instead are necessary to achieve the very “balance” endorsed in Randall

between promoting political participation and preventing corruption. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 28 of 36
23

contributions to a national party committee, and a $5,000 per year limit on contributions to 

multicandidate PACs. FECA Amendments of 1976, § 320(a)(1)(B). These amendments, 

according to Plaintiff, shut down the possibility of channeling a “massive contribution” through a 

party committee or PAC. Pls.’ Br. at 19–20. 

The omission in this narrative, however, is that at the time of Buckley, both party 

committees and multicandidate committees were limited in how much they could contribute to

candidates: both were subject to a $5,000 limit on direct contributions to a candidate, although 

the parties were permitted to make limited coordinated expenditures in connection to a candidate 

as well. See FECA Amendments of 1974, Pub. L. 93–443, §§ 101(b)(2), 101(f), 88 Stat. 1263 

(1974); see also Buckley, 424 U.S. at 13 n.12, 35–36. In short, although parties and PACs were 

not barred by any law save the $25,000 aggregate limit from accepting unlimited contributions, 

they were barred from making unlimited contributions. Thus, even without the $25,000 

aggregate limit, the “statutory context” at the time of Buckley would not have permitted donors 

to route “massive” contributions through parties and PACs to a particular candidate. 

The $25,000 aggregate limit therefore was not enacted to block a single “massive 

contribution” from being funneled through a political party or PAC as plaintiffs suggest. Instead 

the aggregate limit addressed the concern that a wealthy donor would contribute to a large 

number of party committees and/or PACs and then those entities would each make a limited 

contribution to the donor’s preferred candidates. The donor would thus evade the individual 

contribution limits not by making one massive contribution to a party committee or PAC, but 

rather by using a massive number of such entities as pass-through conduits for his contributions. 

This form of circumvention can only be addressed by an aggregate contribution cap. Thus, 

contrary to plaintiffs’ suggestion, the 1976 Amendments in no way obviated the need for an 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 29 of 36
24

aggregate limit and thus do not call into question the constitutionality of the $70,200 aggregate 

limit. 

Furthermore, plaintiffs’ repeated emphasis on the word “massive” reveals their failure to 

understand the basic mechanism of circumvention. The government’s interest in blocking 

circumvention of the individual contribution limits is not only triggered by sums of, for example, 

$30,800,000, being routed through parties and PACs to candidates. Pls.’ Br. at 14–15 (“Since 

Buckley held that only ‘large contributions’ triggered a quid-pro-quo-corruption risk . . . there is 

no conduit concern justifying biennial contribution limits unless it is possible to ‘contribute 

massive amounts of money to a particular candidate . . . .’”) (emphasis in original). Instead, the 

problem of circumvention arises whenever a political entity can serve as a conduit for donors 

seeking to route contributions in excess of the individual contribution limits to a candidate. The 

amount of money passed through a conduit does not have to be “massive” in order to be 

cognizable circumvention, as multiple Supreme Court decisions have noted. In CalMed, for 

instance, the Court was concerned about the use of PACs for circumvention, noting that “[s]ince 

multicandidate political committees may contribute up to $5,000 per year to any candidate . . . , 

an individual or association seeking to evade the $1,000 limit on contributions to candidates 

could do so by channeling funds through a multicandidate political committee.” 453 U.S. at 198 

(citation omitted) (emphasis added). Although the $5,000 that could be passed through a PAC 

was hardly enormous, the Supreme Court still upheld the challenged limit on contributions to 

PACs “to prevent circumvention of the very limitations on [individual] contributions that this 

Court upheld in Buckley.” Id. at 197–198. Similarly, in Colorado II, the Court addressed the 

concern that the higher limits on contributions to parties invite donors to circumvent the 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 30 of 36
25

individual contribution limits by funneling money through party committees to the candidates of 

their choice: 

Under the Act, a donor is limited to $2,000 in contributions to one candidate in a 

given election cycle. The same donor may give as much as another $20,000 each 

year to a national party committee supporting the candidate. What a realist would 

expect to occur has occurred. Donors give to the party with the tacit 

understanding that the favored candidate will benefit. 

533 U.S. at 458. Again, the Court’s concern with circumvention was not limited to schemes 

involving “massive contributions,” at least as plaintiffs define the term. Twenty thousand dollars 

was alarming enough. 

Finally, even if the 1976 Amendments to FECA had impeded some circumvention of the 

individual contribution limits, there is no constitutional rule forbidding the enactment of multiple 

laws to prevent evasion of these limits. Plaintiffs argue that “if the ability to move ‘massive’ 

funds through a conduit to a candidate is already eliminated by one prophylaxis, there remains no 

justification for an additional prophylaxis.” Pls.’ Br. at 15. But this “prophylaxis” phraseology 

comes from a case concerning limits on independent expenditures, see FEC v. Wisconsin Right 

to Life, Inc., 551 U.S. 449, 479 (2007); there is no support in the case law for this proposition in 

connection with a challenge to contribution limits. 

To the contrary, the Supreme Court has often found that multiple laws and regulations 

may be necessary to prevent various forms of circumvention through a particular conduit. In 

Colorado II, for example, the Supreme Court upheld the party coordinated spending limits 

because they prevent donors from circumventing the individual contribution limits by using 

political parties as “pass-throughs” for contributions to their preferred candidates. 533 U.S. at 

464–65. But the coordinated spending limits are hardly the only campaign finance regulation 

applicable to parties. Indeed, the plaintiffs in Colorado II argued that the coordinated spending 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 31 of 36
26

limits were overbroad because any problems concerning circumvention through parties could be 

more narrowly addressed by application or enhancement of the earmarking rules. While not 

disputing that the earmarking rules might prevent some measure of circumvention—i.e., “the 

most clumsy attempts to pass contributions through to candidates”—the Supreme Court rejected 

the argument that this alternative regulation nullified the government’s anti-circumvention 

interest in the challenged law. Id. at 462. As the Court noted, “[plaintiffs’] position ... ignores 

the practical difficulty of identifying and directly combating circumvention under actual political 

conditions.” Id. Thus, far from being concerned about this “layering” of different prophylactic 

campaign finance regulations, the Colorado II Court affirmatively found that such an approach 

may be necessary to successfully curb circumvention. 

Similarly, the existence of the party coordinated expenditure limits and the earmarking 

rules discussed in Colorado II did not prevent the McConnell Court from upholding the 

additional “prophylactic” party soft money restrictions that BCRA added to the law. The anticircumvention measures considered in McConnell included restrictions on soft-money 

solicitations by federal candidates and officeholders, 540 U.S. at 182 (finding that “[s]ection 

323(e)’s restrictions on solicitations are justified as valid anticircumvention measures”); a 

measure restricting state and local candidates and officeholders from spending soft money on 

certain “public communications,” id. at 185 (noting that any argument “that soft-money 

contributions to state and local candidates for ‘public communications’ do not corrupt or appear 

to corrupt federal candidates, ignores both the record in this litigation and Congress’ strong 

interest in preventing circumvention of otherwise valid contribution limits”); and the application 

of federal limits to contributions to state parties used to fund federal election activity, id. at 165 

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

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 32 of 36
27

regulation, . . . [i]t was ‘neither novel nor implausible’ for Congress to conclude that political 

parties would react to § 323(a) by directing soft-money contributors to the state committees, and 

that federal candidates would be just as indebted to these contributors as they had been to those 

who had formerly contributed to the national parties.”) (citation omitted). 

In short, plaintiffs have offered no grounds for this Court to overrule Buckley’s holding 

that an aggregate limit is an important defense against circumvention of the individual 

contribution limits. 

b. The $46,200 Aggregate Limit on Contributions to Candidate 

In addition to directly furthering the governmental interest in preventing quid pro quo 

corruption and the appearance of corruption, as discussed in Section II.B.1 supra, the $46,200 

aggregate limit prevents circumvention schemes involving the use of numerous candidate 

committees to funnel money to a favored candidate. 

Plaintiffs dispute that the $46,200 aggregate limit is supported by an anti-circumvention 

interest, alleging that “Buckley did not even suggest that the old ‘overall $25,000 ceiling’ might 

be justified by the use of candidate committees as conduits.” Pls.’ Br. at 35. But this allegation 

is beside the point. The $25,000 aggregate limit applied to contributions to candidate 

committees and was upheld by Buckley. Regardless of what the Buckley Court “suggested” or 

did not “suggest” in its analysis of the $25,000 aggregate limit, it could not have sustained the 

limit without finding that it was constitutional to impose an aggregate cap on contributions to 

candidates. If an aggregate limit on candidate contributions was not constitutional, then the 

$25,000 limit would have been fatally overbroad and Congress would have been required to 

devise a narrower measure. See, e.g., Pls.’ Br. at 31 (arguing that if this court finds the $70,800 

aggregate limit unconstitutional as applied to national party committees then it should invalidate 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 33 of 36
28

the entire law as overbroad because national party committees represent a “substantial” 

percentage of the law’s total applications). 

Further, the fact that “Congress [has] isolated candidate contributions in BCRA’s 

aggregate contribution limits by giving them their own [$46,200] limit,” Pls.’ Br. at 39, does not 

distinguish the narrower $46,200 aggregate limit from the broader $25,000 aggregate limit 

reviewed in Buckley. The original aggregate limit capped all “contributions” at $25,000, 

including contributions to party committees, candidate committees and PACs. In upholding the 

$25,000 aggregate limit, the Buckley Court thus necessarily found that it was constitutional no 

matter how a donor allocated her total contributions among these recipients—even if she directed 

all $25,000 only to candidate committees, or, for that matter, only to PACs or party committees. 

Also unavailing is plaintiffs’ repetition of the argument that the Buckley Court was 

concerned only with circumvention schemes involving “massive” contributions being routed 

through candidate committees. Pls.’ Br. at 35–36 (“[C]ontributions to candidate committees 

could not pose any possibility of circumvention by ‘massive’ contributions to candidate 

committees that might somehow benefit other candidates.”). To be sure, individuals may only 

contribute $5,000 per election cycle to a particular candidate, and candidate committees can only 

transfer $4,000 to another candidate committee per election cycle, see 11 C.F.R. § 102.12(c)(2). 

But here, as was the case with the party committee circumvention schemes discussed supra, the 

danger is not that a donor will attempt to funnel a single large contribution to her favored 

candidate, but rather that she will contribute more modest sums to a large number of candidate 

committees that will pass on these funds to her favored candidates. Plaintiffs believe it “strains 

credulity” to suggest that candidates will forward contributions to a donor’s favored candidate 

and credit the original donor. Pls.’ Br. at 40. But they offer no evidence to support this selfCase 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 34 of 36
29

serving, and dubious, assertion. Further, they ignore the role parties can play in directing and 

aggregating contributions in such a circumvention scheme. For instance, a donor could 

contribute to two dozen candidate committees, all of which are permitted to transfer funds to 

their party’s national committees without limit; these party committees can aggregate the many 

limited contributions from this donor and then direct the money to the donor’s favored candidate 

in the form of party contributions and coordinated spending. Again, the concern is not with one 

single “massive” contribution being funneled to a favored candidate, but rather with 

contributions to a “massive” number of candidate committees which are eventually aggregated 

for the benefit of the donor’s preferred candidate. By ensuring that donors cannot route hundreds 

of contributions to their preferred candidates through other candidate committees, the aggregate 

limits are a crucial guard against political corruption. 

CONCLUSION 

For the foregoing reasons, this Court should deny plaintiffs’ motion for a preliminary 

injunction. 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 35 of 36
30

Respectfully submitted, 

/s/ J. Gerald Hebert

J. GERALD HEBERT 

(D.C. Bar No. 447676) 

Tara Malloy 

(D.C. Bar No. 988280) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

215 E Street, N.E. 

Washington, D.C. 20002 

Tel: (202) 736-2200 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue, N.W. 

Washington, D.C. 20036 

(202) 429-2008 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Amici Curiae 

Dated: July 10, 2012 

Case 1:12-cv-01034-JEB-JRB-RLW Document 18 Filed 07/10/12 Page 36 of 36