26

think that a contributor to numerous candidates could

without directly or indirectly” saying anythin, ;

telepathically “will” those contributions into the hands

of a single eae candidate. Each candidate that
. contri ution from the indivi

would need to make independent decisions whether 5

eep the money for his or her own campaign, or

transfer it t i i
cane © another candidate, and if so to which

Also, since Buckley, so-called “Su ”
now accept unlimited contributions fromindividuale ne,
purposes of independent expenditures supporting a
specific candidate.” During the 2012 election c “i
several candidates for President benefitted from on 4
independent Super PACs. Restore Our Future raised
and spent $142 million in support of Mitt Romne and
against, Barack Obama, Rick Santorum, and Newt
search. ° Priorities USA Action raised and spent
Meee in support of Barack Obama and against
sin ae: Winning Our Future raised and spent

mulhon in support of Newt Gingrich and against

Se

12
See Center for Responsive Politics, Super PACs
>

http:/Awww.opensecrets.
visto Wy page -org/pacs/superpacs.php?cycle =2010 (ast

* See Center for Res; i iti

Sponsive Politics, Winning Our
ima pipenditures, http:/Avorv.opensecrete orghhced
per .php?s = 00490045 &cycle=2012 (last visited May 7,

TM See Center for Res: i iti
ponsive Politics, Priorities USA Acti:
Independent Expenditures, http://www.opensecrets ore/

pacs/indexpend.php?strID=! ‘
May? 200 php’ C00495861&cycle=2012 (last visited

27

Mitt Romney and Barack Obama.” Whatever salutary
effect the aggregate limit might have had at one time
in limiting individuals from channeling contributions
to benefit particular candidates, it is now clear that the
aggregate limit has failed.

If the earmarking restriction were ineffective—
which amicus doubts—contributors so inclined may
already channel numerous $2,600 contributions
through multiple candidate committees to a single
preferred candidate, in full compliance with the
$48,600 candidate aggregate limit and the $123,200
total aggregate limit. Without violating the aggregate
limit—and setting aside the earmarking
restriction—an unscrupulous contributor could channel
to a preferred candidate over 18 times the maximum.
$2,600 candidate contribution through candidate
committees, or by using political committees and
parties over 47 times the $2,600 limit. Yet, apart from
the wholly distinguishable and unpersuasive “tally
program” example,’* the Government has submitted no

%8 See Center for Responsive Politics, Winning Our Future
Independent Expenditures, http://www.opensecrets.org/pacs/
indexpend.php?strID=C00507525: &cycle=2012 (last visited May 7,

2018).

16 Tp its Motion To Dismiss or Affirm, the Government relied, as it
has repeatedly over the years, upon the DSCC’s “tally” program
from two decades ago. Gov't Motion 18, 20. In August 1995,
however, the DSCC entered a Conciliation Agreement, admitting
that the tally program violated the earmarking provision (but not
the aggregate limits). In the Matter of Democratic Senatorial
Campaign Committee, et al., MUR No. 3620 (Aug. 16, 1995), found
at p. 687 of http://www fec. gov/disclosure_data/mur/3620.pdf. The
DSCC agreed to pay a $75,000 penalty, refund or forward the


14

transformation of contributions into political debate
involves speech by someone other than the
contributor.” 424 U.S. at 21. Again, this justification is
not well reasoned. The line between “contributions”
and “expenditures” is not always clear. See
Jurisdictional Statement Appendix a (“We
acknowledge the constitutional line between political
speech and political contributions grows increasingly
difficult to discern”); see also Nixon, 528 U.S. at 405
(Breyer, J., concurring) (hypothesizing “making less
absolute the contribution/expenditure line,” and citing
as an example candidate expenditures from personal
funds which “might be considered contributions to their
own campaigns”). As an example, FECA deems all
expenditures made in coordination with a candidate to
be “contributions” to that candidate, even when the
coordinated expenditures are pure speech. See 2U.S.C.
§ 441a(a)(7)(B)Gi). Coordinated political advertising has
just as much expressive content as non-coordinated
advertising. And, even though statutorily exempted
from the definition of contribution, 2 U.S.C.
§ 431(8)(B)G), volunteer services ranging from doorbell
ringing to concerts performed by volunteer rock stars
are services “of value” that have an expressive
component. Were Congress to treat volunteer services
as “contributions,” the Court’s jurisprudence on
contribution limits suggests they would not receive full
First Amendment protection.

The blurred—but outcome determinative—
distinction between contribution and expenditure
limits pervades this Court’s recent jurisprudence. In
FEC v. Colo. Republican Federal Campaign Comm.,
533 U.S. 431, 446 (2001), this Court upheld, under the
Jess rigorous standard of review, the coordinated

15

expenditure limit for political parties. It did so
notwithstanding that the “contributions” at issue in
that case were core political speech—advertisements
aired by a political party committee in coordination
with candidates. The Court divided on whether to deem
the advertisements “contributions” or “expenditures.”
Compare id. at 456 (“scrutiny appropriate for a
contribution limit”), with id. at 467-68 (Thomas, J.,
dissenting, joined by Scalia and Kennedy, J.J.)
(disagreeing with characterization).

Moreover, in McConnell v. FEC, the Court applied
the less rigorous review standard to uphold section 323
of BCRA, 2 U.S.C. § 441i(a)(1), which states: “the
national committee of a political party ... may not
solicit, receive, or direct to another person a
contribution, donation, or transfer offunds or any other
thing of value, or spend any funds, that are not subject
to the limitations, prohibitions, and reporting
requirements of this Act.” (emphasis added). The Court
reasoned that the provision did not become an
expenditure limitation merely because it “prohibit[ed]
the spending of soft money.” 540 U.S. at 139. “[I]t is
irrelevant,” the Court wrote, “that Congress chose in
§ 323 to regulate contributions on the demand rather
than the supply side.” Id. at 138. The Court also
deemed the speech inherent in solicitation of
contributions to be subject to the less rigorous
standard. Id. at 140. But see id. at 266, 272 (opinion of
Kennedy, J.) (criticizing the majority's denomination of
section 323 as a contribution limit because it
“exchanges Buckley's substance for a formulaic
caricature of it; the provisions “are neither
contribution nor expenditure limits, or perhaps both at
once”); id. at 309 (Thomas, J., dissenting) (disagreeing


34

$5,000 per calendar year to House candidates. See 2
U.S.C. §§ 441a(a)(2)(C), 441a(a)(5)(B). While
theoretically possible for a state party to contribute to
a House or Senate candidate in another state, the
primary focus of most state parties is on candidates
within their home states. The likelihood of indirect
contributions through state parties on a large scale is
quite small."* Thus, a contributor wishing to use
national political party committees or state political
party committees to evade the individual contribution
limit will be sorely disappointed.

More fundamentally, each of those party
committees has its own electoral priorities—House,
Senate, Presidential, as well as state and local offices.”
Without earmarking, it seems a wildly speculative
investment to contribute money to numerous state
parties on the mere hope that some substantial portion
will end up with a single preferred candidate.

* A review ofthe 2012 contributions of Republican and Democratic
state party committees from California, Florida, Ohio,
Pennsylvania, Texas, and Virginia revealed only one instance in
which a state party contributed to a House candidate in another
state. See FEC, Candidate Committee Viewer,
http://www fec.gov/finance/disclosure/candemte_info.shtml (search
“Ohio Republican Party,” select “2012” from “Two-Year Period”
dropdown menu, and follow “Contributions to Committees”
hyperlink) (transfer of $5,000 by the Ohio Republican Party to
Luke Messer for Congress, representing Indiana’s 6th
congressional district).

* BCRA requires use of funds subject to FECA’s limits for a broad

range of state electoral activity. 2 U.S.C. § 441i(b); McConnell, 540
US. at 161-62.

35

The Government has contended that, absent the
aggregate limit,’ a contributor could make the
maximum non-corrupting contributions to each of the
affiliated party committees in a total amount of $3.5
million. Gov’t Motion 13. Make no mistake: the concern
is not about channeling contributions through these
committees to a preferred candidate. The real concern
is with the raw amount of money a single individual
could contribute in the absence of the aggregate
contribution. This attempt to justify the aggregate limit
as a naked restraint on too much individual speech is
an affront to the First Amendment. Even at this
extreme, however, $3.5 million would be only about
0.1% of the $3.1 billion spent during the 2012 election
cycle on federal elections.”

It is true, of course, that political party committees
may transfer money among themselves, see 2 use
§ 441a(a)(4), but such transfers do not materially
increase the risks purportedly addressed by te
aggregate limit. As shown above, see supra pp. 33-3 3
coordinated expenditure limits of all parties are tie
together, as is the limit on contributions to Senate
candidates. More fundamentally, however, ‘
contributor to political party committees has no contro!
over where the contribution ends up, as shown by the
Government’s lack of proof of channeling.

i iti Overview Stats at a
See Center for Responsive Politics, 2012 we
Glance, http://www.opensecrets.org/overview/ (last visited May 7,

2013).


vi

PRURSKOMEY USEYC)G)(:) 34
QUS.C.§ 44alalT) 0c eee cece eee 25
QUS.C. § 44lalaXT(BMG) oo. eee 14
PRURSK OMY SECS (:) 25
PR URSK OMT SEC) ¢) 33
PR URSK OMY TSEC) C) 33
QUG.C. §44lah) 0... e eee 33
QUS.C.§ 441iAND) oo cece eee eens 15
QUS.C. § 441i)... eee cece ees 34
REGULATION

Treas. Reg. §56.4911-B(D(L)@) «0.2.0.0. eee ee 8
OTHER AUTHORITIES

2013-2014 aggregate contribution limits, available
at http://www.fec.gov/info/contriblimitschart13
14.pdf (last visited May 7, 2013) ............. 2

Arizona Democratic Party, Join the Arizona
Democratic Council, http://azdem.org/action/cont
ribute/adc/levels/ (last visited May 7, 2013) .... 8

vii

Center for Responsive Politics, Emily’s List: All
Recipients, http://www.opensecrets.org/orgs/recip
s.php?id=d000000113 (contributions to
President Obama and 50 House and 13 Senate
candidates) (last visited May 7, 2013) ....... 37

Center for Responsive Politics, 2012 Overview Stats
at a Glance, http://www.opensecrets.org/overvie
w/ (last visited May 7, 2013) ........-.----- 35

Center for Responsive Politics, Priorities USA
Action Independent Expenditures,
http://www.opensecrets.org/pacs/indexpend.php?
strID=C00495861 &cycle=2012 (last visited May
0 0 Es) 26

Center for Responsive Politics, Super PACs,
http://www.opensecrets.org/pacs/superpacs.ph
p2cycle =2010 (last visited May 7, 2018) ...... 26

Center for Responsive Politics, Winning Our Future
Independent Expenditures, http://www.opensec
rets.org/pacs/ indexpend.php?strID=C00490045
&cycle=2012 (last visited May 7, 2018) ...... 26

Center for Responsive Politics, Winning Our Future
Independent Expenditures, http://www.opensec
rets.org/pacs/indexpend .php?strID=C00507525
&cycle=2012 (last visited May 7, 2013) ...... 27

120 Cong. Rec. 27 (1974)... - 6. eee cere eee ee 30

147 Cong. Rec. 4585 (2001) ......-- eee eee 25, 30


28

evidence whatsoever that any such channeling of
contributions is occurring or has ever occurred. This
must mean either that the earmarking restriction is
effective—as it was to stop the abusive “tally
program”’—or that contributors are not inclined to
channel contributions through other entities to their
preferred candidates. Absent evidence of a real
problem, the aggregate limits must fail. See Turner
Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994)
(Government bears the burden of proving “that the
recited harms are real, not merely conjectural”).

The Government has also suggested that some (but
not all) candidates in “safe” districts sometimes
transfer money to candidates in “competitive” districts.
Gov’t Motion 20. But this suggestion is a far ery from
sufficient proof. A contributor wishing (without saying
so) to charinel multiple candidate contributions to a
preferred candidate may or may not prefer a candidate
in a competitive district. Further, each cycle there are
many competitive districts,” so even if the contributor
intended a transfer to a competitive race, the
contributor would have only a slight chance that his

designated contributions, engage in training programs for its staff,
and use standard solicitation language. The FEC recently
rescinded the Agreement because of the DSCC’s compliance.
Federal Election Commission, MUR 3620 (Democratic Senatorial
Campaign Committee) - Request to Modify Conciliation Agreement,
Agenda Doc. No. 12-79 (Nov. 9, 2012), available at
http:/Avww.fec.gov/agenda/2012/mtgdoc_1279.pdf.

* See, e.g., The Cook Political Report, 2012 Howse Race Ratings for
November 1, 2012, http://cookpolitical.com/house/ charts/race-
ratings/5084 (last visited May 7, 2013) (listing 65 House of
Representative races as “competitive”.

29

contribution would be transferred to the precise race he
or she wanted. And the-notion that many transferring
candidates would independently choose to transfer the
contributor’s money to the same preferred candidate
makes the suggestion wholly fanciful. Finally, it bears
noting that any amounts transferred would be from the
transferring committee’s undifferentiated account
containing all contributions received during the cycle,
not just the single contribution from this unscrupulous
contributor.

Also in its Motion To Dismiss or Affirm, the
Government recites the dairy industry's funneling of
contributions through “hundreds of committees in
different States, ‘which could then hold the money for
the President’s reelection campaign.” Gov’t Motion 2-3
(citing Buckley v. Valeo, 519 F.2d 821, 839, 0.36 (D.C.
Cir. 1975) (per curiam), affd in part and rev'd in part,
424 U.S. 1 (1976)). Congress has already addressed, in
a more direct way, this threat of multiple committees
affiliated with the same candidate. The $2,600 Timit on.
contributions by an individual and the $5,000 limit on.
contributions by multicandidate political committees
apply to contributions to “any candidate and [all] his
authorized political committees.” 2 U.S.C.
8§ 441a(a)(1)(A), 441a(ay(2)(A) (emphasis added). The
aggregate limit plays no role in addressing this concern.
because contributions to any and all committees of the
same candidate are already subject to a single limit.

Although relying primarily on the evasion rationale,
the Government obliquely acknowledges that the real
purpose of the aggregate limit is to reduce the influence
of large contributors. The Government quotes the
legislative history from 1974, when the original


32

against earmarked contributions, there can b

agai ; 5 e no other
Justification for the aggregate limit on individual
contributions to candidates. Accordingly, the $48,600
aggregate limit on contributions te ic
committees must fall. ° candidate

Ill. AGGREGATE LIMITS ON IND
IVIDUAL
CONTRIBUTIONS TO NON-CANDIDATE
POLITICAL COMMITTEES OFFEND THE
FIRST AMENDMENT.

Section 441a(a)(3)(B) sets an aggregate limit of
$74,600 “in the case of other contributions, of which not
more than [$48,600] may be attributable to
contributions to political committees which are not
political committees of national political parties.” An
individual may contribute no more than $32,400 to any
national political party in any calendar "year. The
aggregate biennial limit for individual contributions to
all political committees is $74,600. This $74,600 limit
encompasses individual contributions to all six national
party committees, all state parties, and all unaffiliated
political committees (including the separate segregated
fund established by the contributor’s employer).

This scheme means that an individual c i
$64,800 ($32,400 multiplied by two) toa singlonationes
party committee over two years, and then have a total
of only $9,800 in that election cycle to give to all other
national party committees, any state party committees.
any multi-candidate committee, and his or her
employer’s separate segregated fund. As shown (Part I
above), strict scrutiny is appropriate, but these

aggregate limits cannot pass even “
eer Pp n “closely drawn”

33

Multi-candidate political committees that are not
party committees confront annual limits, not changed
in four decades, of $5,000 on contributions they can
accept from individuals, $5,000 on contributions they
can make to candidates or other committees, and
$15,000 on contributions they can make to national
party committees. 2 U.S.C. §§ 441a(a)(1)(C);
441a(a)(2)(A), (C), (B). The notion that a contributor
could “contribute massive amounts of money to a
particular candidate” in increments of $5,000 when it
is illegal to instruct or suggest that the political
committee direct those funds is too speculative to
warrant serious consideration.

A. The Aggregate Limit on Contributions
to National Political Party Committees
Is Not Closely Drawn To Serve Any
Government Interest.

The risk of evasion—channeling “massive amounts”
of money to individual candidates—is fanciful for
donations to national political parties. The prohibition
against earmarking is fully applicable to contributions
made to such party committees, as demonstrated by
the successful enforcement action against the DSCC’s
“tally program.” See p. 27, n.16 above. Further, the Act
ties together the coordinated expenditure limits of
national and state political party committees for both
Senate and House races. See 2 U.S.C. §§ 441a(d)(1), (3).
For senatorial candidates, the statute further
addresses the prospect of channeling by limiting
contributions to $45,400 per Senate candidate by “any
combination of [national party] committees.” 2 U.S.C.
§ 441a(h). Congress expressly allows the separate
national and state party committees to donate up to


22

Jurisdictional Statement Appendix 10a (“Yet if
anything is clear, it is that contributing a large amount
of money does not ipso facto implicate the
Government’s anticorruption interest. The
Government's assertion that large contributions ‘could
easily exert a corrupting influence on the democratic
system’ and would present ‘the appearance of
corruption that is “inherent in a scheme of large
rosy. financial contributions” simply sweeps too

Second, the Court has explained that “the level of
scrutiny is based on the importance of the ‘political
activity at issue’ to effective speech or political
association.” Beaumont, 589 U.S. at 161. The effect of
the aggregate limits is to prohibit association with
additional candidates or political committees once the
contributor reaches the aggregate limit. Even if a limit
on the amount of money a contributor may give to a
particular candidate is but a “marginal restriction” on
the contributor’s right to associate with that candidate,
the aggregate limits go further. Once the contributor
reaches the threshold through association with other
candidates, the aggregate limits prohibit association
with additional candidates. Thus, the aggregate limits
do more than restrict association; they prohibit it
outright, and should be reviewed under strict scrutiny.

If so reviewed, the aggregate limits offend the Fi
Amendment and must fall. " emest

23

Il. THEAGGREGATE LIMIT ON INDIVIDUAL
CONTRIBUTIONS TO CANDIDATES
OFFENDS THE FIRST AMENDMENT.

The aggregate limit on individual contributions to
federal candidates has no legitimate purpose and
cannot withstand even “closely drawn,” much less
strict, scrutiny. Section 441a(a)(3)(A) provides that,
during each biennial election cycle, “no individual may
make contributions aggregating more than—(A)
[$46,200] in the case of contributions to candidates and
the authorized committees of candidates.” Congress has
determined, in provisions not at issue here, that an
individual may contribute up to $2,600 per election to
any federal candidate without corrupting or appearing
to corrupt that candidate. In compliance with that
non-corrupting limit, the aggregate limit allows an
individual to give full support, by contributing the
maximum $5,200 ($2,600 each for primary and general
elections), to only 17 federal candidates per election
cycle. Support of any candidate at any level once the
$48,600 level is reached is a crime, punishable by up to
five years in prison. 2 U.S.C. § 437g(d)(1(A@.

A. Section 441a(a)() Abridges the Rights of
Speech and Association.

Once a contributor has exhausted the aggregate
limit, Section 441a(a)(3) prohibits any further financial
association with any other candidate. Recent decisions
recognize that an outright prohibition on contributions
does not pass even the complaisant standard of
Buckley. In Green Party of Connecticut v. Garfield, 616
F.3d 189 (2d Cir. 2010), the Second Circuit upheld
Connecticut’s ban on political contributions by state


6

has become a formulaic caricature that invites word
play rather than rigorous constitutional analysis, and
has drawn repeated and compelling criticism from
Members of this Court. The time has come for the
Court to revisit the distinction. See Citizens United,
558 U.S. at 363 (“This Court has not hesitated to
overrule decisions offensive to the First Amendment.”)
(citations omitted).

A. Political Contributions Are Central
Elements of Core Political Speech and
Association.

The Court recognized in Buckley that both
“contribution and expenditure limitations operate in an
area of the most fundamental First Amendment
activities,” to which “[t]he First Amendment affords the
broadest'protection.” 424 U.S. at 14. Both “contribution
and expenditure limitations impose direct quantity
restrictions on political communication and association
by persons, groups, candidates, and political parties.”
Id. at 18. Further, “[t]he First Amendment protects
political association as well as political expression.” Id.
at 15. Association “undeniably enhance[s]” effective
advocacy. Id. (citation omitted). Importantly, the Court
recognized that “it is beyond dispute that the interest
in regulating the alleged ‘conduct’ of giving or spending
money ‘arises in some measure because the
communication allegedly integral to the conduct is
itself thought to be harmful.” Id. at 17 (citations
omitted).

Contribution limits restrict the rights of speech and
association of both the contributor and the recipient of
the contribution. For the contributor, an investment of

7

money is both a symbolic show of support and
affiliation, but it is also tangible and quantifiable. Not
all persons have the name recognition of a George
Clooney, a Bruce Springsteen, or a Donald Trump, from
whom a public endorsement or appearance would
possibly carry weight. Nor do all people have the free
time, skills, or proximity to be effective campaign
volunteers. Thus, for many if not most persons, a
contribution of money is by far the most effective
means of supporting a preferred candidate. And, just as
intensity of support can be divined by the number of
volunteer hours spent, for many if not most
contributors the intensity of support is directly related
to the size of the check.*

For the recipient, whether candidate or committee,
contributions also implicate the rights of speech and
association. Contributions directly enable speech, and
allow “candidates and political committees [to] amass|]
the resources necessary for effective advocacy.”
Buckley, 424 U.S. at 21. See also Randall v. Sorrell, 548
U.S. 230, 262 (2006) (opinion of Breyer, J., announcing
judgment of the Court) (holding that Vermont
contribution limits prevented candidates from
amassing sufficient resources). But recipients of
contributions also have a First Amendment right to
associate with many contributors, and to associate at

4 See David A. Strauss, Corruption, Equality, and Campaign
Finance Reform, 94 Colum L. Rev. 1369, 1374 (1994) (“At the ballot
box, a voter has a difficult time showing how enthusiastically she
supports a candidate. ... By contrast, a contributor can spend her
money in direct proportion to the intensity of her views.”).


1
INTEREST OF AMICUS CURIAE

Senator Mitch McConnell is the senior United
States Senator from the Commonwealth of Kentucky.*
He is the Republican Leader in the United States
Senate and the former Chairman of the National
Republican Senatorial Committee, a national political
party committee comprising the Republican members
of the United States Senate.

Senator McConnell is a respected senior statesman
and is recognized as the Senate’s most passionate
defender of the First Amendment guarantee of
unrestricted political speech. He has - acquired
considerable experience over the last three decades
complying with federal and state campaign finance
restrictions and legislating on campaign finance issues.
For many years, Senator McConnell has participatedin
litigation challenging restrictions on political speech.
For example, he was the lead plaintiff challenging the
Bipartisan Campaign Reform Act (“BCRA”) in
McConnell v. FEC, 540 U.S. 93 (2008), and participated
as amicus both by brief and oral argument in Citizens
United v. FEC, 558 U.S. 310 (2010), which overruled
McConnell v. FEC in part. Senator McConnell submits
this brief in support of Appellants.

' This brief is filed with the consent of all parties and pursuant to
United States Supreme Court Rule 37.3(a). Pursuant to Rule 37.6,
Senator McConnell states that no party or person other than
Senator McConnell and his counsel participated in or contributed
money for the drafting of this brief.


viii

The Cook Political Report, 2012 House Race Ratings
for November 1, 2012, http://cookpolitical.com/ho
use/charts/race-ratings/5084 (last visited May 7,
2013)

Federal Election Commission, Candidate Committee

Viewer, http://www .fec.gov/finance/disclosure/ca
ndemte_info.shtml ................000000- 34

Federal Election Commission, Query by Individual
Contributor, http;//www .fec.gov/finance/disclosur
e/advindsea.shtml (search “Donald Trump,”
“Michael Bloomberg,” and “Aaron Sorkin”)(last
visited May 7, 2018)

Georgia Democrats, Georgia Democrats Yellow Dog
Club, http://www.georgiademocrat.org/
contribute/yellow-dog-club/ (last visited May 7,
2018)

In the Matter of Democratic Senatorial Campaign
Committee, et al., MUR No. 3620 (Aug. 16,
1995), http://www.fec.gow/disclosure_data/
mur/3620.pdf ......... 00000000022 eee 27

Federal Election Commission, MUR 3620
(Democratic Senatorial Campaign Committee) -
Request to Modify Conciliation Agreement,
Agenda Doc. No. 12-79 (Nov. 9, 2012), available
at http://www.fec.gov/agenda/2012/mtgdoc_
W279. pak .6 6. eee eee ee 28

ix

Press Release, NARAL Pro-Choice America,
NARAL Pro-Choice America PAC Announces
New Endorsements in Key House, Sendte
Contests To End War on Women (April 3, 20 12),
available at http://www.prochoiceamerica.
orgelections/elections-press-releases/2012/pr04
032012_pac-endorsements.html (last visited
May 7, 2018) ..... 00sec reer eee eee eee 37

Republican Party of Arkansas,
Contribute—Business Counsel,
http://www.arkansasgop.org/index.cfm?p=busi
ness-council (last visited May 7,2013) ....... 8

David A. Strauss, Corruption, Equality, and
Campaign Finance Reform, 94 Colum L. Rev.
1869 (1994) 0... cece eee eee 7


24

contractors because of a recent bribery scandal
involving contractors, but struck down a ban on
political contributions by lobbyists because “the recent
corruption scandals had nothing to do with lobbyists,”
id, at 206, and a ban “cuts off even ‘the symbolic
expression of support evidenced by’ a small
contribution,” id. (quotation omitted). Similarly, in
Lavin v. Husted, 689 F.3d 543 (6th Cir. 2012), the Sixth
Cireuit struck down Ohio’s ban on political
contributions by Medicaid providers because the State
lacked evidence that Medicaid providers had been
involved in bribery, and “the contribution ban is not
closely drawn.” Id. at 548. In both decisions, the courts
emphasized that an outright ban on contributions, and
the speech and association that they represent, could
not be deemed “closely drawn.”

B.'‘No Justification for the Aggregate Limit
on Contributions to Candidates Can
Salvage It.

It is true that the Court in Buckley upheld the then-
existing $25,000 aggregate limit. But in Buckley, the
aggregate limit had not “been separately addressed at
length by the parties.” 424 U.S. at 38. The Court
upheld it as a “quite modest restraint upon protected
political activity” which “serve[d] 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.” Id. As
Appellants point out, Congress has thoroughly
addressed the concerns about evasion of the candidate

25

contribution limit in multiple ways.’ First, the
statutory earmarking provision attributes all
earmarked contributions back to the earmarking
contributor. 2 U.S.C. § 441a(a)(8). Second, Congress
has limited the proliferation of contributions to
affiliated committees. 2 U.S.C. § 441a(a)(7). Third, it
has imposed limits on contributions to party
committees. 2 U.S.C. § 441a(a)(1)(B), (D).

The aggregate limit on contributions to candidates
serves no legitimate purpose. First, it does not prevent
quid pro quo corruption. In response to a colleague 's
argument against raising the aggregate limit during
legislative debate on BCRA, Senator Thompson
responded “[nJo one person is receiving more than
$2,500. So you don’t have a corruption issue.” 147 Cong.
Rec. 4585, 4631 (2001) (emphasis added). The very
same reasoning undermines the entire aggregate limit.

Second, the Government’s hypothesis that the
aggregate limit prevents evasion of the contribution
limit to individual candidates does not withstand
analysis. Any “directly or indirectly” earmarked
contributions channeled through one candidate or
committee to another candidate is deemed a
contribution to the designated candidate, 2 USC,
§ 441a(a)(8), thus limiting the contributor toa single
$2,600 contribution. In view of this earmarking
provision, a contributor may do no more than hope his
contributions to other candidates end up in the hands
of his preferred candidate. It is, of course, unrealistic to

4 Brief for Appellant McCutcheon 41-43; Brief for Appellant RNC
19-24,


4

the prohibited contributions. In view of the restrictions
on earmarked contributions and the unrealistic
prospect that a contributor could channel excessive
funds to a preferred candidate, the aggregate limit is
not closely drawn to serve any significant government
interest. Indeed, even though the current aggregate
limit, considered in isolation, would allow an
unscrupulous contributor to channel as much as
$123,200—over 47 times the $2,600 limit—to a
preferred candidate through other candidates and
political committees, the Government has come
forward with no evidence that any contributor has
successfully done so. Other restrictions in the Federal
Election Campaign Act (“FECA”), as amended, 2 U.S.C.
§§ 481 et seq., and its accompanying regulations

prevent this prospect.* ;

L AS WITH POLITICAL EXPENDITURES,
STRICT SCRUTINY MUST APPLY TO
POLITICAL CONTRIBUTIONS.

The Court first distinguished the scope of review
applicable to contribution limits from the scope of
review applicable to expenditure limits in Buckley, 424
US. at 24-31. The Court deemed the “restriction of one
aspect of the contributor’s freedom of political
association” to be “the primary First Amendment
problem” raised by contribution limits. Id. at 24.
Although recognizing that the right of association is a

3 Indeed, in the lone instance cited below by the Government, in
which the Democratic Senatorial Campaign Committee (“DScc”)
“tallied” contributions for Senate candidates, the DSCC admitted
‘violating the earmarking provision (but not the aggregate limit)
provision. See p. 27 n. 16 below.

5

“basic constitutional freedom,” the Court held that
“elven a ‘significant interference with protected rights
of political association may be sustained if the State
demonstrates a sufficiently important interest and
employs means closely drawn to avoid unnecessary
abridgement of associational freedoms.” Id. at 25
(emphasis added) (citations and internal quotation
marks omitted); see also Davis v. FEC, 554 U.S. 724,
737-38, n.7 (2008). Because it deemed the contribution
limits in FECA to be “closely drawn” to address actual
or apparent quid pro quo corruption, the Court
concluded “under the rigorous standard of review
established by our prior decisions, the weighty
interests served by restricting the size of financial
contributions to political candidates are sufficient to
justify the [contribution limit].” Buckley, 424 US. at
25, 29. In contrast, the Court struck down the
expenditure limits after subjecting them to the
“exacting scrutiny applicable to limitations on core
First Amendment Rights of political expression.” Id. at
44-45.

Subsequent decisions have clarified that the Court
applies “strict scrutiny” to limits on political
expenditures. “Laws that burden political speech are
‘subject to strict scrutiny, which requires the
Government to prove that the restriction ‘furthers a
compelling interest and is narrowly tailored to achieve
that interest.” Citizens United, 558 U.S. at 340
(citations omitted). Yet, the Court continues to use so-
called “closely drawn” scrutiny to review limits on
political contributions. This “relatively complaisant
yeview” of contribution limits, Beaumont, 539 US. at
161, improperly diminishes the importance of
contributions to core political speech and association,


36

B. The Aggregate Limit on Contributions
to Other Political Committees Is Not

Closely Drawn To Ser
ve A
Government Interest. "Ny

BCRA subdivides the aggregate limit for political
committees by imposing a $48,600 biennial limit on
contributions to political committees that are not
national political parties. As shown (Part III.A. above)
this subsidiary limit would be fully consumed if the
contributor opted to give $74,600 in an election cycle to
national party committees. Any further contribution to
a state political party, his or her employer's separate

segregated fund, or an unaffili iti i
Seeregated mune liated political committee

Alternatively, if the contribu

contributions to national party commitiocs, awa
donates up to the subsidiary limit of $48,600 applicable
to political committees that are not national
committees, the contributor will be forbidden from
contributing to any other such committees. For
example, if a contributor gave $5,000 per year to his or
her employer’s separate segregated fund ($10,000 over
two years), $10,000 per year to his or her state political
party ($20,000 over two years), and three donations of
$5,000 aplece over a two year period to other multi-
candidate political committees (totaling $15,000), the
contributor would be very close to exhaustin, / th

subsidiary aggregate limit. see

A politically active contributor with a passion for
several issues such as low taxes, marijuana
legalization, gun rights, fetal rights, ‘health care.
immigration reform, and national security will quickly

37

find the aggregate limit constraining. The right to
associate with state and local party committees, issue-
oriented political committees, and employer separate
segregated funds is thus infringed, as is the ability of

_ the contributor to have his or her voice fully heard as

part of these groups. The aggregate limit also infringes
the right of the political committees to receive the
contributions and to convert those contributions into

core political speech.

The Government argues that the greater number of
political committees in existence today, and the greater
ease in learning which candidates they support, make
channeling contributions to candidates “even easier
now than it was when Buckley was decided.” Gov't
Motion 12. Each of the two political committees cited as
examples, however, support scores of candidates. In the
2012 cycle, NARAL announced support for 5 Senate
and 36 House candidates and EMILY’s List contributed
to a total of 64 federal candidates. * This activity
makes it impossible for a contributor to predict which
candidate will benefit from his or her $5,000
contribution. Thus, the Government’s best examples

refute its argument.

21 See Press Release, NARAL Pro-Choice America, NARAL Pro-
Choice America PAC Announces New Endorsements in Key House,
Senate Contests To End War on Women. (April 3, 2012), available
at http://www.prochoiceamerica.orgelections/elections-press-
releases/2012/pr04032012_pac-endorsements.html (last visited
May 7, 2013); Center for Responsive Politics, Emily’s List: All
Recipients, http://www.opensecrets.org/orgs/recips. php?id=d0000
00113 (contributions to President Obama and 50 House and 13
Senate candidates) (last visited May 7, 2013).


Ss ow
S Po
= Si.
No. 12-536 “< 328
7” Re
Jn the Supreme Court of the United Stgtek “5
2 &
awd 7
SHAUN McCUTCHEON, kT AL.,
Plaintiffs-Appellants,
v. .
FEDERAL ELECTION COMMISSION,
Defendant-Appellee.

On Appeal from the United States
District Court for the District of Columbia

BRIEF OF SENATOR MITCH MCCONNELL
AS AMICUS CURIAE SUPPORTING APPELLANTS

Bobby R. Burchfield

Counsel of Record
Matthew M. Leland
Brandon H. Barnes
Michael S. Stanek
Andrea M. Alegrett
Mary D. Hallerman :
McDERMOTT WILL & EMERY LLP
500 N. Capitol St., N.W.
Washington, D.C. 20001
(202) 756-8000
bburchfield@mwe.com

Counsel for Amicus Curiae



10

expression rests solely on the undifferentiated,
symbolic act of contributing. At most, the size of
the contribution provides a very rough index of
the intensity of the contributor’s support for the
candidate. [3] The limitation on the amount of
money a person may give to a candidate or
campaign organization thus involves little direct
restraint on his political communication, for it
permits the expression of support evidenced by a
contribution but does not in any way infringe the
contributor’s freedom to discuss candidates and
issues. [4] While contributions may result in
political expression if spent by a candidate or an
association to present views to the voters, the
transformation of contributions into political
debate involves speech by someone other than the
contributor.

Id. at 21 (emphasis added). Experience shows that this

reasoning does not withstand careful analysis.

; At the outset, these four justifications for less
rigorous scrutiny of contribution limits address only
the expressive value of the contribution, whereas the
Buckley Court recognized that “the primary First
Amendment problem” with such limits is their
infringement of the right of association. Id. at 24.
Although Buckley deemed contribution limits only a
“marginal” restriction on the right of association, it
never justified its assumption that a $1 contribution is
equivalent in. its power to associate to a $1,000
contribution. That proposition is not self-evident, and
is rebutted by the fact that so many contributors—most
of whom have no agenda other than to support the

11

candidate, party, or cause—give the maximum
amounts allowed by law.

Nor are the four justifications for restraining the
expressive element of contributions persuasive.
Buckley’s first justification for less rigorous review of
contribution limits—that a contribution is “a general
expression of support for the candidate and his view,”
but does not state “the underlying basis for
support”—is flawed for two reasons. To start, a
campaign message stating “I endorse Jones” is entitled
to no less protection than a message stating “I support
Jones because he favors low taxes and limited
government.” Moreover, the Court has never required
a speaker to state the reason for a symbolic act, such as
flag burning, in order to obtain full First Amendment
protection. See Texas v. Johnson, 491 U.S. 397, 406,
412 (1989) (applying “the most exacting scrutiny” to
reverse a conviction under Texas flag desecration
statute); United States v. Hichman, 496 U.S. 310, 318
(1990) (applying strict scrutiny to invalidate a statute
prohibiting flag burning). See also Virginia v. Black,
538 U.S. 348, 365 (2003) (invalidating a cross burning
statute because of its prima facie assumption that the
burning was for the purpose of intimidation rather
than speech).

The second justification—that “the quantity of
communication by the contributor does not increase
perceptively with the size of his contribution” and is
merely “a very rough index of the intensity” of
support—is also unpersuasive. Again, the precedents of
this Court do not require speech to be made with any
reasoning, or at any particular decibel level or font size,
for full First Amendment protection. Moreover, the


8

varying levels of intensity.> Campaigns and political
party committees generally communicate more
frequently and extensively with large contributors,
invite them to events, and involve them more fully in
their campaigns and other efforts.°

In short, it is no exaggeration to say that political
contributions are not only an avenue of symbolic
political expression, but are also a concrete and
tangible expression of support that enables the political
speech at the core of the American political process. As
Chief Justice Burger correctly observed in his Buckley
dissent many decades ago, contributions and
expenditures are simply “two sides of the same First
Amendment coin,” and the effort to distinguish them
has produced mere “word games.” 424 U.S. at 241, 244
(Burger, C.J., concurring in part and dissenting in
part), '

* Cf. Treas. Reg. § 56.4911-5(f)(1)G) (a person is a “member” of a
charity and qualified to receive certain exempt communications
only if the person “makes a contribution of more than a nominal
amount.”) (emphasis added).

° See, e.g., Arizona Democratic Party, Join the Arizona Democratic
Council, http://azdem.org/action/contribute/ade/ levels/ (last visited
May 7, 2018) (high contributors receive tickets to election night
parties); Republican Party of Arkansas, Contribute—Business
Counsel, http://www.arkansasgop.org/ index.cfm?p=business-
council (last visited May 7, 2013) (high contributors may attend
quarterly briefing calls with key Virginia elected officials); and
Georgia Democrats, Georgia Democrats Yellow Dog Club,
http://www.georgiademocrat.org/ contribute/yellow-dog-club/ (last
visited May 7, 2013) (high contributors receive regular “insider”
updates and invitations to regular conference calls on the “State of
the State Party”).

9

B. Complaisant Review of Contribution
Limits Is Unfounded and Mlogical.

Buckley justified a less rigorous standard of review
for contributions on the ground that contribution limits
primarily (but not exclusively) restrict associational
freedoms, rather than expressive freedoms. 424 US. at
24. Notwithstanding the dual effect of contribution
limits on associational and expressive freedoms, the
Court has “proceeded on the understanding that a
contribution limitation surviving a claim of
associational abridgment would survive a speech
challenge as well.” Nixon v. Shrink Missouri Gov't PAC,
528 U.S. 377, 388 (2000). According to Buckley,
whereas “(a] restriction on the amount of money a
person or group can spend on political communication
during a campaign necessarily reduces the quantity of
expression by restricting the number of issues
discussed, the depth of their exploration, and the size
of the audience reached,” “a limitation upon the
amount that any one person or group may contribute to
a candidate or political committee entails only a
marginal restriction upon the contributor’s ability to
engage in free communication.” 424 US. at 19, 20-21

(emphasis added).

Buckley provided four reasons for less stringent
review of contribution limits:

[1] A contribution serves as a general expression
of support for the candidate and his views, but
does not communicate the underlying basis for
the support. {2] The quantity of communication
by the contributor does not increase perceptibly
with the size of his contribution, since the


2
SUMMARY OF ARGUMENT

I The Court should revisit the bifurcated standard
of review for political contribution and expenditure
limits and hold that strict scrutiny applies to both. The
justifications set forth in Buckley v. Valeo, 424 U. S.1
(1976) (per curiam), for the less rigorous standard of
review for contribution limits have proved invalid, and
case law shows that a principled distinction between
contributions and expenditures is difficult to draw.

. II. Should the Court nevertheless decide that
closely drawn” scrutiny should still apply to
contribution limits, the aggregate limit on
contributions by individuals to candidates cannot pass
even that less rigorous standard. Once an individual
contributes $48,600? over a two year period to federal
candidates, the aggregate limit imposes a total ban on
non-corrupting contributions from that individual to
any other candidates. This total ban severely infringes
the rights of association and speech. In view of
restrictions on earmarked contributions, on the
proliferation of affiliated political committees and on
the political party committees, the government cannot
show a single instance in which a contributor has been
able _to channel excessive contributions through
multiple candidate committees to a single candidate.

* The aggregate contribution limits referred to herein are the 2018-
2014 aggregate contribution limits, available at

http://www.fec.gov/info/contriblimits isi
Moe? bole chart1314.pdf (last visited

3

Ill. The$74,600 aggregate limits on contributions
by individuals to political committees, of which not
more than $48,000 may go to committees which are not
political parties, suffers from the same flaws as the
aggregate limit on candidate contributions. It imposes
a severe infringement on the rights of speech and
association, but cannot be supported by even a single
instance of successful evasion.

ARGUMENT

This case presents an opportunity for the Court to
reject, based on almost four decades of experience, the
less rigorous, “complaisant” level of First Amendment
review accorded to contribution limits. See FEC v.
Beaumont, 539 U.S. 146, 161 (2003). Since Buckley, the
Court has employed a bifurcated standard to review
campaign finance restrictions, applying strict scrutiny
to political expenditure limits and never upholding
them, while applying “closely drawn” scrutiny to
political contribution limits and almost never striking
them. The reasoning underlying Buckley’s bifurcated
standard has not weathered the test of time. Moreover,
even if this Court upholds “closely drawn” scrutiny for
direct contributions to candidates, the aggregate
contribution limits at issue in this case are very
different from other contribution limits; aggregate
contribution limits inflict greater infringements of
association, but raise none of the guid pro quo concerns
that might justify “closely drawn” scrutiny.

Alternatively, even under “closely drawn” scrutiny,
the aggregate contribution limits impose severe
burdens on the rights of speech and association for both
the putative contributor and the putative recipients of


30

aggregate limit was enacted. Gov’t Motion 2. There,
Congressman Brandemas said the aggregate limit was
intended to “curtail the influence of excessive political
contributions by any single person.” 120 Cong. Rec. 27,
224 (1974). The legislative history of BCRA also
strongly suggests that “leveling the playing field” was
at least one consideration behind this limit. See 147
Cong. Rec. 4585, 4625 (2001) (statement of Sen.
Feingold) (criticizing a $100,000 aggregate limit as “a
staggering sum to most people . . . this bill is about
lessening the influence of money on politics. It is not
about increasing it.”); 147 Cong. Rec. 4585, 5198 (2001)
(statement of Sen. Kerry) (“This increase [in the
aggregate limits] simply enables the tiniest percentage
of the population that currently contributes large
contributions to contribute even more. This increase
does nothing at all to increase the role the average
voter plays in our election process.”).

Since Buckley, it has been firmly established that
“leveling the playing field” or equalizing speech is not
a legitimate basis for campaign finance regulation. As
the Buckley Court put it: “[T]he concept that
government may restrict the speech of some elements
of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment.” 424
U.S. at 48-49; see also Ariz. Free Enter. Club’s Freedom
Club PAC v. Bennett, 131 8. Ct. 2806, 2825 (2011) (“We
have repeatedly rejected the argument that the
government has a compelling state interest in eveling
the playing field’ that can justify undue burdens on
political speech”); Citizens United, 558 U.S. at 341;
Davis, 554 U.S. at 741-42.

31

The Government suggests that “contribution limits,
unlike expenditure limits, are not speech-equalization
measures” because contributors remain free to spend
independently to promote candidates. As the
quotations from the legislative history show, however,
Congress did view aggregate ; limits as “speech
equalization measures.” By limiting the total amount
of direct candidate support any one individual can
provide in any two year period, the aggregate limits
certainly have that effect. And, as the Court has held
for four decades, contributions contain an element of
speech, meaning equalization is no more appropriate to
justify contribution limits than it is to justify
expenditure limits.

The Government next suggests that the concern is
not with equalization, but with “Improper influence’
resulting from a single contributor making a large
dollar value of contributions to different candidates.
Gov’t Motion 13. This is not, however, the improper
influence” of a direct contribution to a candidate, which
might threaten quid pro quo corruption. Rather, it is
the “improper influence” purportedly garnered by a
large contributor from a grateful party establishmen' .
This Court has now made clear that such ingratiation
is not corruption and thus not sufficient to sustain a
restraint on First Amendment freedoms. Citizens
United, 558 U.S. at 360 (“Ingratiation and access, in
any event, are not corruption.”).

In short, it is far too late in the day for the
Government to argue that any restriction on campaign
speech or association may be justified by concerns
about “too much money in politics” or ‘leveling the
playing field.” Yet, with the existing prophylaxis


iv

FEC v. Nat'l Conservative Political Action Comm.,

470 U.S. 480 (1985) ............004. 18, 18, 21
Glidden Co. v. Zdanok,

370 U.S. 580 (1962) ..... 0. eee eee 20
Green Party of Connecticut v. Garfield,

616 F.3d 189 (2d Cir. 2010) ............. 23, 24
Lavin v. Husted,

689 F.3d 543 (6th Cir. 2012) ............00. 24
McConnell v. FEC,

540 U.S. 93 (2003) ............... 1, 15, 19, 34
Montejo v. Louisiana,

556 U.S. 778 (2009) ... 0.6... eee eee eee eee 20
Nixon v. Shrink Missouri Gov’t PAC,

528 U.S. 377 (2000) .. 2... eee ee 9,14, 19
Payne v. Tennessee,

501 U.S. 808 (1991) ........ 2. eee eee 20
Randall v. Sorrell,

548 U.S. 230 (2006) .......-....- 200 7, 16, 19
Texas v. Johnson,

491 U.S. 397 (1989) 2.0... eee eee 11
Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994) 0... eee 28

United States v. Kichman,
496 U.S. 310 (1990) ...... 0. eee 11

Virginia v. Black,
538 U.S. 343 (2008) .... eee eee eee eee 11

CONSTITUTIONAL PROVISION

US. Const. amend.I........ ccc ceeee eee passim
STATUTES

2US.C. § 481, ef seg. 2... - eee eee eee 4,5, 14, 34
2US.C. § 481(8)(B)G «0... eee eee 14
2US.C. § 487g(A)IMAD «6 oe ee eee 23
2US.C. § 44la(alL(A) .. 6. eee ee eee 29
2US.C. § 44la(alI(B) ....-. eee eee eee 25
2US.C. § 44la(al(C) .. 6. ee eee eee eee eee 33
2US.C. § 44la(ali(D) ..... eee eee eee 25
2US.C. § 44la(al2(A) ...-. 6. eee eee eee 29, 33
2US.C. § 441a(al2)(B) .. 2. ee eee eee eee ee 33
2US.C. § 441a(al(2XC) .. 6. cece eee eee ee 33, 34
2US.C. § 44lalaBMA) . 6. ee eee eee eee eee 23
2US.C. § 44la(al(8X(B) 2... eee eee eee eee 32
2QUS.C. § 44la(a4) 0... cece eee eee eee ee 35


16

Z

with conception of statute “as nothing more than a
contribution limit,” and lamenting “the steady decrease
in the level of scrutiny applied to restrictions on core
political speech”). In short, the supposition that
campaign money falls neatly into the category of
nonexpressive “contributions” versus expressive

“expenditures” is belied by the very jurisprudence of
this Court.

Notwithstanding the Buckley Court’s focus on the
rights of the contributor, the Government now contends
that “the constitutionality of a contribution limit is
analyzed from the perspective of the recipient, not the
contributor.” Appellee’s Mot. Dismiss or Affirm 24
(“Gov't Motion”). It is true that one avenue of
challenging contribution limits is to show that they are
so severe as to prevent “candidates and political
committees from amassing the resources necessary for
effective advocacy.” Buckley, 424 U.S. at 21. This Court
has found this high standard met only once in 37 years,
formulating a case-specific five factor test that may
prove difficult to apply in future cases. See Randall,
548 U.S. at 253-62. As shown above (pp. 7-8),
candidates and political committees rely on the amount
of contributions to engage in core political speech, not

just on their symbolic, associational value. The
demanding “amassing resources” standard, however,
assumes that, at any specific contribution limit, the
candidate—however unknown at the outset of his
candidacy—can successfully appeal to a large number
of potential contributors to “amass” campaign
resources. Under a regime of contribution
limits—including aggregate limits—the better known
candidate (usually the incumbent) has an inherent

17

advantage. Complaisant review of contribution limits
entrenches that advantage.

C. Justices of This Court Have Repeatedly
and Consistently Questioned the More
Relaxed First Amendment Review of
Contribution Limits.

These analytical shortcomings of the contribution-
expenditure limit dichotomy have not gone unnoticed
by the Justices of this Court. Four of the eight Justices
participating in Buckley eventually rejected the
dichotomy as constitutionally flawed. In Buckley, Chief
Justice Burger and Justices Blackmun and White
questioned the logic of the dichotomy. Chief Justice
Burger observed that “(t]he Court's attempt | to
distinguish the communication inherent in political
contributions from the speech aspects of political
expenditures simply ‘will not wash.” 424 US. at 244
(Burger, C.J., concurring in part and dissenting in
part). Noting that “contributions and expenditures are
two sides of the same coin,” he predicted that
“fllimiting contributions, as a practical matter, will
limit expenditures and will put an effective ceiling on
the amount of political activity that will take place. ‘Id.
at 241-42. Justice Blackmun reached a similar
conclusion, writing that he was “not persuaded that the
Court makes, or indeed is able to make, a principled
constitutional distinction between the contribution
limitations on the one hand, and the expenditure
limitations on the other.” Id. at 289 (Blackmun, J »
concurring in part and dissenting in part). Justice
White also questioned the logic. Buckley, 424 US. at
261 (White, J., concurring in part and dissenting in
part). And nine years after joining the portion of


20

D. Stare Decisis Does Not Justify
Adherence to the Unworkable and Til-
Advised Complaisant Review of
Contribution Limits.

Stare decisis does not compel adherence to the “half-
way house” of Buckley. In determining whether to
follow the policy of stare decisis, this Court considers
the workability of the prior decision, the age of the
precedent, the reliance interests in the precedent,
practical experience after the decision was handed
down, and “of course, whether the decision was well
reasoned.” Montejo v. Louisiana, 556 U.S. 778 792-93
(2009). But “stare decisis is neither an inexorable
command, nor a mechanical formula of adherence to
the latest decision, especially in constitutional cases.”
Citizens United, 558 U.S. at 377 (Roberts, CJ.
concurring) (quotations omitted). Instead, it is a
prudential policy that “promotes evenhanded.
predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). This Court has a “considered practice” not to
apply ‘his policy “as rigidly in constitutional as in

nconstitutional cases,” Glidden Co. v. Zdan

US. 530, 543 (1962), because “corrective sate he
constitutional cases] through legislative action is
practically impossible.” Payne, 501 U.S. at 828 (citing
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407
(1932) (Brandeis, J., dissenting)). Thus, “[t]his Court
has not hesitated to overrule decisions offensive to the
First Amendment.” Citizens United, 558 U.S. at 363
(citation omitted). ;

21

Accordingly, amicus Senator Mitch McConnell urges
the Court to reconsider the application of less rigorous
scrutiny for contribution limits, and to accord full First
Amendment protection to contributions by applying
strict scrutiny to all contribution limits.

E. Even If the Court Does Not Reconsider
“Closely Drawn” Scrutiny for All
Contribution Limits, Strict Scrutiny Is
Appropriate for Aggregate Limits.

As shown, the justification for lower scrutiny of
contribution limits simply “does not wash.” But even if
this Court declines to revisit the use of “closely drawn”
scrutiny for all contributions; it should apply strict
scrutiny to the aggregate limits at issue here.

First, even without the aggregate limits, the
individual contribution limits are sufficient to address
concerns about quid pro quo corruption. Those limits
prevent any contributor from making direct
contributions to any candidate, political committee, or
national or state party committee in an amount likely
to cause actual or apparent corruption. The direct
transaction with the candidate—the purported “money
for political favors’—underlies both the contribution
limits themselves and the First Amendment review of
those limits. See NCPAC, 470 U.S. at 497 (“Corruption
is a subversion of the political process. Elected officials
are influenced to act contrary to their obligations of
office by the prospect of financial gain to themselves or
infusions of money into their campaigns.”). As a result,
the justification for an aggregate limit—however
phrased—differs in a material sense from the
justification for limits on direct contributions. Cf


ii

U. THE AGGREGATE LIMIT ON
INDIVIDUAL CONTRIBUTIONS TO
CANDIDATES OFFENDS THE FIRST
AMENDMENT .................0.000. 23

A. Section 441a(a)(3) Abridges the Rights of
Speech and Association .............. 23

B. No Justification for the Aggregate Limit
on Contributions to Candidates Can
Salvage lt.............00.00000.00.. 24

It. AGGREGATE LIMITS ON INDIVIDUAL
CONTRIBUTIONS TO NON-CANDIDATE
POLITICAL COMMITTEES OFFEND THE
FIRST AMENDMENT ................. 32

A. The Aggregate Limit on Contributions to
National Political Party Committees Is
Not Closely Drawn To Serve Any
Government Interest ................. 33

B. The Aggregate Limit on Contributions
to Other Political Committees Is Not
Closely Drawn To Serve Any Government
Interest .... 20.0. eee 36

CONCLUSION ............ 0... cece cece ae 38

iii
TABLE OF AUTHORITIES
CASES

Ariz. Free Enter. Club’s Freedom Club PAC v.
Bennett, 181 S. Ct. 2806 (2011) ............. 30

Buckley v. Valeo, ;
424U.S.1(1976) ..... 0. eee passim

Buckley v. Valeo,
519 F.2d 821 (D.C. Cir. 1975),
affd in part and rev’d in part,

424US.1(1976) 2... eee eee 29
Burnet v. Coronado Oil & Gas Co.,

285 U.S. 393 (1982) .. 0... eee ee 20
Citizens United v. FEC, :

558 U.S. 310 (2010) ..... 02. eee passim
Colo. Republican Fed. Campaign Comm. v.

FEC, 518 US. 604 (1996) .............00.. 19
Davis v. FEC, ;

554 U.S. 724 (2008)... eee eee eee 5, 30

FEC v. Beaumont,
539 U.S. 146 (2008) ......... 00000. 38, 5, 19, 22

FEC v. Colo. Republican Federal
Campaign Comm.,
533 U.S. 431 (2001) ......0-.......00.. 14, 15


38
CONCLUSION

For the reasons set forth above, and in the briefs of
Appellants RNC and McCutcheon, amicus Senator
McConnell urges the Court to revisit the bifurcated
standard of review for contribution and expenditure
limits, hold that strict scrutiny applies to both, and
hold that all aggregate contribution limits in BCRA are
invalid under the First Amendment.

Dated: May 13, 2013
Respectfully submitted,

Bobby R. Burchfield
Counsel of Record

Matthew M. Leland

: Brandon H. Barnes
Michael S. Stanek
Andrea M. Alegrett
Mary D. Hallerman
McDERMOTT WILL & EMERY LLP
500 N. Capitol St., N.W.
Washington, D.C. 20001
202.756.8000
bburchfield@mwe.com

Counsel for Amicus Curiae



i

o

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........-.20555 iti
INTEREST OF AMICUS CURIAE ...........-- 1
SUMMARY OF ARGUMENT .............-5555 2
ARGUMENT ....... 00000 cece eee ete eee 3

L AS WITH POLITICAL EXPENDITURES,
STRICT SCRUTINY MUST APPLY TO
POLITICAL CONTRIBUTIONS ........-. 4

A. Political Contributions Are Central
Elements of Core Political Speech and
Association ........ 006 cee eee cere 6

B. Complaisant Review of Contribution
Limits Is Unfounded and logical ...... 9

C. Justices of This Court Have Repeatedly
and Consistently Questioned the More
Relaxed First Amendment Review of
Contribution Limits ...........--++- 17

D. Stare Decisis Does Not Justify Adherence
to the Unworkable and Ill-Advised
Complaisant Review of Contribution
Limits 0... 00 eee eee 20

E. Even If the Court Does Not Reconsider
“Closely Drawn” Scrutiny for All
Contribution Limits, Strict Scrutiny Is
Appropriate for Aggregate Limits ..... 21



12

amount of a contribution does, indeed, show the
intensity of support. Ifa contributor feels more strongly
about candidate A than about candidate B, he may give
a larger contribution to candidate A. The contribution
decision is not merely binary—contribute or don’t
contribute—but involves a critically important
intensity component as well. Publicly available data
demonstrate that individual contributors do give
varying amounts of money to different candidates.”

Even if variations in contribution amounts are “a
very rough index of the intensity of the contributor’s
support for the candidate,” the amount contributed is
the best, if not the only, index of such intensity. Words
spoken, events attended, or doorbells rung might also
indicate intensity of support for some people, but the
difference between a contributor’s $100 contribution to
candidate Jones versus a $2,600 contribution to
candidate Smith sends a strong and quantifiable
message of association and support, and can be just as

’ For example, during the 2012 election cycle, public figures
including Donald Trump, Mayor Michael Bloomberg, and Aaron
Sorkin contributed varying amounts to different candidates. Mr.
Trump contributed $1,000 to former Congressman Allen West
while contributing the maximum amount to former Senate
candidate Linda McMahon. Similarly, Mayor Bloomberg donated
$1,000 to Congressman Grace Meng and the maximum
contribution to Senator Tim Kaine, Mr. Sorkin contributed $1,000
to Senator Elizabeth Warren while contributing the maximum
amount to former Congressman Howard Berman. See Federal
Election Commission, Query by Individual Contributor,
http,//www.fec.gov/finance/disclosure/ advindsea.shtml (search
“Donald Trump,” “Michael Bloomberg,” and “Aaron Sorkin”) (ast
visited May 7, 2013).

13

meaningful, or more so, than wearing a button or
posting a yard sign.

Third, the notion that a contribution limit “permits
the symbolic expression of support ... but does not in
any way infringe the contributor’s freedom to iseuss
candidates and issues,” Buckley, 424 US. at
(emphasis added), suggests that contribution limits are
allowable merely because other avenues of spect
remain available. This notion discounts the on na
importance of contributions to the funding a
candidate political speech. A contributor may ma ea
maximum contribution and continue to seuss
candidates and issues,” but the coordination rw Hes
prevent such additional speechin coordination with in
candidate. Speech by the candidate, paid or wi
contributions from supporters, is far more ne we
than the independent speech of a supporter. Cf. 5 g
Nat'l Conservative Political Action, Comm., 470 U:
480, 498 (1985) (NCPAC”) (“The absence ‘ Ry
prearrangement and coordination aS .
value of the expenditure to the candidate ). ost
fundamentally, the existence of alternative avenues 0
expression is not a justification for limiting gre
important avenue. For example, it is unlikely is

Court would condone a statute probibiting a
appearances by candidates so long as they cou $ i
appear on television. Cf Citizens United, 558 ue. al
326 (“We must decline to draw, and then ret aw,
constitutional lines based on the particular media or
technology used to disseminate political speech from a
particular speaker.”).

i justified less rigorous
Finally, the Buckley Court justifie r
review of contribution limits on the ground that “the


18

Buckley distinguishing contributions from
expenditures, Justice Marshall admitted that “the
distinction has no constitutional significance.” NCPAC,
470 US. at 519.8

While the composition of the Court has changed
since Buckley, the criticism of this bifurcated standard
of review has not abated. Justice Thomas has argued

[Clontribution limits infringe as directly and
- seriously upon freedom of political expression
and association as do expenditure limits. The
protections of the First Amendment do not
depend upon so fine a line as that between
spending money to support a candidate or group
and giving money to the candidate or group to
spend for the same purpose. In principle, people
and groups give money to candidates and other
groups for the same reason that they spend
money in support of those candidates and
groups: because they share social, economic, and
political beliefs and seek to have those beliefs
affect governmental policy. I think the Buckley
framework for analyzing the constitutionality of
campaign finance laws is deeply flawed.

... [T]here is no constitutionally significant
difference between campaign contributions and
expenditures: Both forms of speech are central

5 While Chief Justice Burger and Justice Blackmun advocated full
First Amendment protection for contributions, Justices White and
Marshall advocated greater regulation of expenditures. All four
agreed that the distinction between contributions and
expenditures was not material to First Amendment analysis.

19

to the First Amendment. Curbs on protected
speech, we have repeatedly said, must be strictly
scrutinized. ‘

Colo. Republican Fed. Campaign Comm. v. FEC, 518
U.S. 604, 640 (1996) (Thomas, J., concurring in part
and dissenting in part).® Justice Kennedy has also
criticized this distinction, noting that “by accepting half
of what Congress did (limiting contributions) but
rejecting the other (limiting expenditures),” Buckley
created a “half-way house” and a “misshapen system
[that] distorts the meaning of speech.” Nixon, 528 U.S.
at 407, 410; see also McConnell, 540 U.S. at 311
(Kennedy, J., concurring in part and dissenting in part)
(referring to the less rigorous review of contribution
limits in Buckley as “[ulnworkable and ill advised”).

° See also, e.g., Beaumont, 539 U.S. at 164 (Thomas, J. ” dissenting)
(stating that “campaign finance laws are subject to strict scrutiny,
and “under strict scrutiny, broad prophylactic caps on ... giving in
the political process are unconstitutional”); Randall, 548 US. at
266 (Thomas, J., joined by Scalia, J., concurring on the judgment)
(“I adhere to my view that this Court erred in Buckley when it
distinguished between contribution and expenditure limits.”).

Tn Randall, two Justices noted that the parties did not challenge
the Buckley framework. 548 U.S. at 263 (Alito, J. concurring in
part); id. at 264 (Kennedy, J., concurring in the judgment).