No. 12-683 

In the Supreme Court of the United States

VIRGINIA JAMES, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MOTION TO DISMISS OR AFFIRM 

ANTHONY HERMAN

General Counsel 

LISA J. STEVENSON

Deputy General Counsel 

DAVID KOLKER

Associate General Counsel 

ADAV NOTI

Acting Assistant General 

Counsel 

STEVE N. HAJJAR

Attorney 

Federal Election 

Commission 

Washington, D.C. 20463 

DONALD B. VERRILLI, JR. Solicitor General 

Counsel of Record 

Department of Justice 

Washington, D.C. 20530-0001 

SupremeCtBriefs@usdoj.gov 

(202) 514-2217 

 
(I) 

QUESTION PRESENTED 

Whether the three-judge district court correctly rejected appellant’s constitutional challenge to the federal 

statutory limit on the aggregate amount that an individual may contribute to federal candidates during a twoyear election cycle, 2 U.S.C. 441a(a)(3)(A). 
(III) 

TABLE OF CONTENTS

Page

Opinion below .................................................................................. 1 

Jurisdiction ...................................................................................... 1 

Statement ......................................................................................... 1 

Argument ......................................................................................... 6 

Conclusion ...................................................................................... 15 

TABLE OF AUTHORITIES 

Cases: 

Ayotte v. Planned Parenthood, 546 U.S. 320 (2006) .......... 11 

Buckley v. Valeo: 

519 F.2d 821 (D.C. Cir. 1975) ......................................... 3, 4 

424 U.S. 1 (1976) ....................................................... passim 

California Med. Ass’n v. FEC, 453 U.S. 182 (1981) ........... 13

Citizens United v. FEC, 130 S. Ct. 876 (2010) ..................... 15

Davis v. FEC, 554 U.S. 724 (2008) ........................................ 11

FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001) ........................................... 13, 14

McCutcheon v. FEC, No. 12-cv-1034, 2012 WL 

4466482 (D.D.C. Sept. 28, 2012), appeal docketed, 

No. 12-536 (Oct. 26, 2012) ................................................ 4, 11 

Randall v. Sorrell, 548 U.S. 230 (2006) ................................ 11 

Ratzlaf v. United States, 510 U.S. 135 (1994) ...................... 10 

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 

(2006) ........................................................................................ 6 

Constitution, statutes and regulations:

U.S. Const. Amend. I ..................................................... passim 

Bipartisan Campaign Reform Act of 2002, Pub. L. 

No. 107-155, § 403, 116 Stat. 113-114 ................................... 4 
IV 

Statutes and regulations—Continued: Page

Federal Election Campaign Act of 1971, 2 U.S.C. 431 

et seq. ........................................................................................ 1 

2 U.S.C. 431(5) ................................................................... 12 

2 U.S.C. 431(8)(A) ............................................................... 2 

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

2 U.S.C. 441a(a)(1)(A)-(D) .................................................. 2 

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

2 U.S.C. 441a(a)(3)(A) ............................................... 3, 9, 10 

2 U.S.C. 441a(a)(3)(B) ............................................... 3, 9, 10 

2 U.S.C. 441a(a)(3)(A)-(B) ........................................ 5, 8, 10 

11 C.F.R.: 

Section 100.2 ........................................................................ 2 

Section 110.5(b) ................................................................... 9 

Section 110.5(b)(1) ............................................................... 9 

Section 110.5(b)(3) ............................................................... 9 

Miscellaneous: 

120 Cong. Rec. 27,224 (1974) .................................................... 2 

Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist Bundling Disclosure Threshold, 76 Fed. Reg. (Feb. 14, 2011): 

p. 8368 ................................................................................... 2 

pp. 8369-8370........................................................................ 2 

p. 8370 ............................................................................... 3, 8 

 
(1) 

In the Supreme Court of the United States

No. 12-683 

VIRGINIA JAMES, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MOTION TO DISMISS OR AFFIRM 

OPINION BELOW 

The opinion of the three-judge district court dismissing appellant’s complaint (J.S. App. 3-12) is not published in the Federal Supplement but is available at 2012 

WL 5353565. 

JURISDICTION 

The decision of the three-judge district court was entered on October 31, 2012. A notice of appeal was filed 

on November 1, 2012, and the jurisdictional statement 

was filed on November 30, 2012. The jurisdiction of this 

Court is invoked under Section 403(a)(3) of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

116 Stat. 113-114. 

STATEMENT 

1. The Federal Election Campaign Act of 1971 

(FECA), 2 U.S.C. 431 et seq., places two types of limits 

on the amounts of money that an individual can contrib-
2 

ute in connection with a federal election. First, FECA 

imposes base limits on the amounts that an individual 

can contribute to any one candidate, political party, or 

non-party political committee. 2 U.S.C. 441a(a); see 2 

U.S.C. 431(8)(A) (definition of “contribution”). As 

inflation-adjusted for the 2011-2012 election cycle, 

FECA permitted an individual to contribute up to $2500 

per election (counting primary and general elections 

separately) to “any candidate and his authorized political committees”; up to $30,800 per year to “the political 

committees established and maintained by a national 

political party”; up to $10,000 per year “to a political 

committee established and maintained by a State committee of a political party”; and up to $5000 per year “to 

any other political committee.” 2 U.S.C. 441a(a)(1)(A)-

(D); see Price Index Adjustments for Contribution and 

Expenditure Limits and Lobbyist Bundling Disclosure 

Threshold, 76 Fed. Reg. 8368, 8369-8370 (Feb. 14, 2011); 

see also 11 C.F.R. 100.2 (definition of “election”). 

Second, FECA imposes aggregate limits on the total 

amounts that an individual can contribute to all federal 

candidates and political committees during a two-year 

election cycle. 2 U.S.C. 441a(a)(3). The aggregate limits 

serve to “curtail the influence of excessive political contributions by any single person.” 120 Cong. Rec. 27,224 

(1974) (statement of Rep. Brademas). The congressional 

findings accompanying the 1974 enactment of the FECA 

contribution limits identified instances in which contributions to numerous separate entities had been made at 

the request of particular candidates. For example, the 

dairy industry had avoided then-existing reporting requirements by dividing a $2,000,000 contribution to 

President Nixon among hundreds of committees in different States, “which could then hold the money for the 
3 

President’s reelection campaign.” Buckley v. Valeo, 519 

F.2d 821, 839 n.36 (D.C. Cir. 1975) (per curiam). On 

another occasion, a presidential aide had promised an 

ambassadorship to a particular individual in return for 

“a $100,000 contribution to be split between 1970 senatorial candidates designated by the White House and 

[President] Nixon’s 1972 campaign.” Id. at 840 n.38. 

As inflation-adjusted for the 2011-2012 election cycle, 

FECA’s aggregate limits permitted an individual to 

contribute $46,200 to candidates for federal office and 

another $70,800 to non-candidate entities, i.e., national 

political parties, state political parties, and non-party 

political committees. 2 U.S.C. 441a(a)(3)(A) and (B); 76 

Fed. Reg. at 8370. Thus, the total that an individual 

could lawfully contribute during the election cycle to all 

candidate and non-candidate entities combined was 

$117,000. 

2. Appellant is a private individual who alleges that 

she would like to make contributions to candidates that 

would exceed the aggregate limit on candidate contributions but would not exceed FECA’s total aggregate 

limits on contributions to all entities. J.S. App. 40; see 

id. at 42-43. In particular, she alleges that during the 

2011-2012 election cycle she contributed $27,000 to candidates and $5000 to political committees, but that she 

wanted to make additional contributions to candidates 

(within the $2500 per-candidate, per-election base limit) 

that would have brought her aggregate candidate contributions to more than $46,200 but less than $117,000. 

Id. at 42-43. 

On August 31, 2012, appellant filed suit against the 

Federal Election Commission (FEC) in the United 

States District Court for the District of Columbia, raising facial and as-applied First Amendment challenges to 
4 

FECA’s aggregate limit on contributions to federal 

candidates. J.S. App. 5. She moved for a preliminary 

injunction and requested that a three-judge district 

court be convened to hear her suit pursuant to Section 

403 of the Bipartisan Campaign Reform Act of 2002 

(BCRA), Pub. L. No. 107-155, 116 Stat. 113-114. J.S. 

App. 5. Because such a court had already been convened to hear a First Amendment challenge to all of 

FECA’s aggregate contribution limits in McCutcheon v.

FEC, No. 12-cv-1034, 2012 WL 4466482 (D.D.C. Sept. 28, 

2012), appeal docketed, No. 12-536 (Oct. 26, 2012), appellant’s suit was assigned to the same three-judge panel. 

J.S. App. 5. That panel then stayed appellant’s case 

pending the resolution of McCutcheon, which had already been briefed and argued. Id. at 5-6. 

3. On September 28, 2012, the three-judge district 

court issued its ruling in McCutcheon, upholding the 

constitutionality of FECA’s aggregate contribution 

limits. J.S. App. 16-34. Applying the exacting-scrutiny 

standard that this Court employs in assessing contribution limits (id. at 22-25), the district court observed that 

this Court has identified two important governmental 

interests that justify such limits: (1) “preventing corruption or the appearance of corruption”; and (2) “preventing circumvention of contribution limits imposed to 

further [the government’s] anti-corruption interest.” Id. 

at 25 (citing Buckley v. Valeo, 424 U.S. 1, 26-27, 38 

(1976) (per curiam)). The district court additionally 

observed that, in Buckley v. Valeo, supra, this Court 

had upheld the aggregate contribution limit in the thencurrent version of FECA as “no more than a corollary of 

the basic individual contribution limitation that [it 

found] to be constitutionally valid.” J.S. App. 28 (quoting Buckley, 424 U.S. at 38). The district court conclud-
5 

ed that it would “follow [this] Court’s lead and conceive 

of the contribution limits as a coherent system” to curb 

political corruption, in which aggregate limits “prevent 

evasion of the base limits.” Id. at 28-30. 

4. On October 1, 2012, the three-judge district court 

lifted the stay in appellant’s case and ordered the parties to show cause why the suit should not be dismissed 

under the reasoning of McCutcheon. J.S. App. 6. After 

receiving briefing on that question, the court denied 

appellant’s request for a preliminary injunction and 

dismissed her complaint. Id. at 1-12. 

The district court rejected appellant’s argument that 

Buckley’s anti-circumvention rationale for upholding 

aggregate limits was applicable only to aggregate limits 

on contributions to non-candidate entities. J.S. App. 8. 

The court explained that, if the $46,200 aggregate limit 

on contributions to candidates were struck down, appellant and others would be able to circumvent the base 

contribution limits by contributing millions of dollars to 

hundreds of federal candidates, who could in turn transfer those funds to certain targeted candidates or to their 

national political party. Id. at 8-9. Appellant had asserted that the “biennial aggregate limit of $117,000”—

which she did not challenge—would prevent such circumvention. Id. at 9. The district court observed, however, that FECA contains no independent $117,000 limit, 

only a $46,200 limit on contributions to candidates and a 

$70,800 limit on contributions to non-candidate committees. Ibid. (citing 2 U.S.C. 441a(a)(3)(A)-(B)). “Remove 

one of the sublimits,” the court explained, “and there is 

no higher constraint.” Ibid. 

Appellant also sought to distinguish her suit from 

Buckley and McCutcheon by characterizing her claim as 

an as-applied rather than a facial challenge. J.S. App. 9-
6 

11. The district court acknowledged that a decision 

upholding a statute against a facial challenge does not 

foreclose subsequent as-applied challenges to that statute. Id. at 10 (citing Wisconsin Right to Life, Inc. v. 

FEC, 546 U.S. 410 (2006)). The court observed, however, that appellant’s complaint explicitly challenged the 

facial constitutionality of the statute and that, in any 

event, she had identified no facts that would differentiate her case from McCutcheon. Id. at 10-11. 

ARGUMENT 

The three-judge district court’s unanimous decision 

reflects a straightforward application of this Court’s 

precedents. This Court upheld FECA’s aggregate contribution limit in Buckley v. Valeo, 424 U.S. 1, 38 (1976) 

(per curiam), and that holding applies with full force to 

the aggregate limits in the current version of the statute, including the $46,200 aggregate limit on contributions to candidates. The appeal should therefore be 

dismissed for lack of a substantial federal question. In 

the alternative, the judgment of the district court should 

be affirmed. 

1. In Buckley, this Court upheld the constitutionality 

of various contribution limits in the 1974 version of 

FECA, including a base limit of $1000 on contributions 

by an individual to a candidate and an aggregate limit of 

$25,000 on total contributions by an individual in any 

calendar year. 424 U.S. at 23-38. In doing so, the Court 

recognized that limits on contributions, unlike limits on 

expenditures, are not subject to strict scrutiny under 

the First Amendment. Compare, e.g., id. at 24-25, with 

id. at 52-54. Instead, the Court concluded that contribution limits are constitutional so long as the government 

“demonstrates a sufficiently important interest and 
7 

employs means closely drawn to avoid unnecessary 

abridgment of associational freedoms.” Id. at 25. 

The Court explained that, “[b]y contrast with a limitation upon expenditures for political expression, 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.” Buckley, 424 

U.S. at 20-21. That is because “the transformation of 

contributions into political debate involves speech by 

someone other than the contributor.” Id. at 21. While 

the contribution itself “serves as a general expression of 

support for the candidate and his views,” it “does not 

communicate the underlying basis for the support,” and 

the “quantity of communication by the contributor does 

not increase perceptibly with the size of his contribution, 

since the expression rests solely on the undifferentiated, 

symbolic act of contributing.” Ibid. Furthermore, although contribution limits “impinge on protected associational freedoms” by “limit[ing] one important means of 

associating with a candidate or committee,” they do not 

preclude other means of association, and they “leave the 

contributor free to become a member of any political 

association and to assist personally in the association’s 

efforts on behalf of candidates.” Id. at 22. 

Applying the reduced degree of scrutiny appropriate 

to contribution limits, the Court in Buckley identified 

two “weighty interests * * * sufficient to justify” the 

then-current $1000 limit on individual contributions to 

candidates. 424 U.S. at 28-29. First, the limit reduced 

the opportunity for individuals to use large contributions “to secure a political quid pro quo from current 

and potential office holders.” Id. at 26-27. Second, and 

“[o]f almost equal concern,” the limit reduced “the ap-
8 

pearance of corruption stemming from public awareness 

of the opportunities for abuse inherent in a regime of 

large individual financial contributions.” Id. at 27. 

Turning to the $25,000 aggregate contribution limit, 

the Court found it to be “no more than a corollary of the 

basic individual contribution limitation” that the Court 

had already “found to be constitutionally valid.” Buckley, 424 U.S. at 38. The Court accepted that the “overall 

$25,000 ceiling does impose an ultimate restriction upon 

the number of candidates and committees with which an 

individual may associate himself by means of financial 

support.” Ibid. It reasoned, however, that “this quite 

modest restraint 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.” Ibid. 

2. In this case, appellant does not challenge the constitutionality of FECA’s base limits on contributions to 

particular candidates or political committees, nor does 

she challenge the constitutionality of FECA’s aggregate 

contribution limits in general. J.S. 2, 17. She instead 

argues that, even if the base limits are constitutional, 

and even if Congress may constitutionally impose a 

$117,000 total aggregate limit, FECA’s $46,200 aggregate limit on contributions to candidates violates the 

First Amendment. Appellant contends that, by restructuring FECA to contain two different aggregate limits—

a $46,200 limit on contributions to candidates and a 

$70,800 limit on contributions to non-candidate entities, 

2 U.S.C. 441a(a)(3)(A)-(B), 76 Fed. Reg. at 8370—

Congress has now “require[d]” a donor who wishes to 
9 

contribute a total of $117,000 to candidates to contribute 

60% of that amount to non-candidate entities instead. 

J.S. 5. Asserting that donations to non-candidate entities are more likely to facilitate corruption and circumvention than donations to candidates, J.S. 19-24, appellant asks the Court to strike down the $46,200 aggregate 

limit on contributions to candidates and to leave in place 

a single, undifferentiated $117,000 aggregate contribution limit, J.S. 2. Appellant’s contentions are flawed in 

several respects. 

a. As the district court observed (J.S. App. 9), appellant’s arguments are premised upon a “fundamental 

miscomprehension” of the statutory scheme. The current version of FECA does not contain a single $117,000 

aggregate limit with sub-restrictions on how that money 

must be spent. It instead contains two separate aggregate limits, one on contributions to candidates (2 U.S.C. 

441a(a)(3)(A)) and one on contributions to non-candidate 

entities (2 U.S.C. 441a(a)(3)(B)). 

Appellant’s contrary argument lacks merit. She first 

asserts (J.S. 13-14) that the FEC’s regulation implementing the biennial aggregate limits, 11 C.F.R. 

110.5(b), acknowledges the existence of a single overarching aggregate limit.1

 That regulation, however, 

does not and could not alter the statutory scheme to 

create a single aggregate limit separate and apart from 

the two separate limits specified in Sections 

441a(a)(3)(A) and 441(a)(3)(B). Rather, the regulation 

 

1

 See 11 C.F.R. 110.5(b)(1) (stating that in a two-year period, “no 

individual shall make contributions aggregating more than $95,000, 

including no more than * * * $37,500 [in candidate contributions] 

* * * and * * * $57,500 in [non-candidate contributions]”); see also 

11 C.F.R. 110.5(b)(3) (noting that limits will be indexed for inflation); 

76 Fed. Reg. at 8370 (increasing limits for inflation). 
10 

simply reflects a recognition that an individual who 

makes contributions totaling more than the sum of the 

two separate aggregate limits will necessarily violate 

FECA, since it would be mathematically impossible to 

make total contributions of more than $117,000 without 

either (a) making contributions to candidates of more 

than $46,200, or (b) making contributions to noncandidate entities of more than $70,800.2

 If appellant 

had contributed more than $117,000 in the 2011-2012 

election cycle, however, she would have violated either 

2 U.S.C. 441a(a)(3)(A) (the limit on contributions to 

candidates), 2 U.S.C. 441a(a)(3)(B) (the limit on contributions to non-candidate entities), or both. FECA simply does not contain any overall aggregate limit, distinct 

from the limits imposed by 2 U.S.C. 441a(a)(3)(A) and 

(B), that appellant could have violated. 

A correct understanding of the relevant aggregate 

limits undermines appellant’s constitutional argument in 

two distinct ways. First, it refutes her assertion (J.S. 

20) that her “claims involve the distribution of funds 

under [an] aggregate cap, not the existence of the cap 

itself.” By claiming a First Amendment right to make 

contributions to candidates in excess of $46,200 during 

the 2011-2012 election cycle, appellant necessarily challenges the constitutionality of Section 441a(a)(3)(A), 

which limits an individual’s aggregate contributions to 

candidates. But she presents no argument to support 

 

2

 The isolated statements from the legislative history on which 

appellant relies (J.S. 15-16) are best understood to reflect the same 

understanding. In any event, this Court “do[es] not resort to legislative history to cloud a statutory text that is clear,” Ratzlaf v. United

States, 510 U.S. 135, 147-148 (1994), and FECA’s text clearly imposes two separate aggregate limits rather than one, 2 U.S.C. 

441a(a)(3)(A)-(B).
11 

that claim—which in any event is meritless in light of 

Buckley. See McCutcheon v. FEC, No. 12-cv-1034, 2012 

WL 4466482 (D.D.C. Sept. 28, 2012), appeal docketed, 

No. 12-536 (Oct. 26, 2012); Mot. to Dismiss or Affirm at 

7-25, McCutcheon v. FEC, supra, No. 12-536 (Jan. 2, 

2013). Indeed, appellant appears to acknowledge that 

Congress could constitutionally impose a $117,000 aggregate limit on contributions to candidates. See, e.g., 

J.S. 2; J.S. App. 10. She offers no reason why a $46,200 

limit would be unconstitutional when a $117,000 limit is 

not, and this Court has generally deferred to legislative 

determinations of the appropriate size of contribution 

limits. See, e.g., Randall v. Sorrell, 548 U.S. 230, 248 

(2006) (plurality opinion); Davis v. FEC, 554 U.S. 724, 

737 (2008); Buckley, 424 U.S. at 30. 

Second, the remedy that appellant appears to seek—

a declaration that she can contribute more than $46,200 

but less than $117,000 to candidates in each biennial 

election cycle, J.S. 2—is beyond the district court’s 

power to grant. If the $46,200 aggregate limit on campaign contributions were held to be unconstitutional, 

appellant “or anyone else” would be free to “give at least 

$2.34 million (435 House candidates plus 33 Senate candidates multiplied by $5,000—that is, $2,500 for primary 

and $2,500 for general election) to candidate committees 

(or possibly to a joint fundraising committee).” J.S. 

App. 8-9. Because the statute contains no overarching 

$117,000 cap, a court could not impose one if the cap that 

Congress actually enacted were found to be invalid. 

Although courts may (in appropriate circumstances) 

sever unconstitutional portions of statutes, they may not 

rewrite them. See, e.g., Ayotte v. Planned Parenthood, 

546 U.S. 320, 329 (2006). 
12 

b. In any event, appellant is wrong to suggest (J.S. 

17-26) that the anti-circuvmention rationale of Buckley

is inapplicable to aggregate limits on contributions to 

candidates. The Court in Buckley concluded that Congress may enact aggregate contribution limits to further 

the important governmental interest of preventing a 

single donor from “contribut[ing] 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.” 424 U.S. at 38. That 

rationale squarely encompasses a situation in which a 

contributor supplements his contribution to candidate X 

by also contributing to political committees controlled 

by other candidates, with the expectation that those 

additional contributions will in turn be given to candidate X or to a political party that will contribute to candidate X. See 2 U.S.C. 431(5) (defining a candidate’s 

“principal campaign committee” as one type of political 

committee). 

Appellant does not dispute that candidates can and 

do transfer funds between each others’ campaign committees. In particular, FEC data show that candidates 

in “safe” districts (i.e., districts where the outcome of 

the election is not in doubt) regularly contribute campaign funds to candidates in their party who face more 

difficult elections. J.S. App. 97-98 (citing FEC data 

about such contributions). Such transfers could easily 

circumvent the $2500 base limit on contributions to 

candidates, and the aggregate limit is a constitutional 

means of preventing such circumvention. 

Appellant also does not dispute that candidates can 

and do transfer funds to and from political parties. 

FECA imposes no limits on contributions from candi-
13 

dates to parties, and FEC data show that candidates 

transfer campaign funds to their parties on a massive 

scale, including more than $24 million to the national 

Democratic Party and more than $35 million to the national Republican Party in the 2011-2012 election cycle 

alone. J.S. App. 99; see id. at 97 n.3. Such transfers can 

in turn finance the parties’ activities on behalf of other 

candidates—not only contributions, but also “coordinated expenditures, which have no ‘significant functional 

difference’ from * * * direct candidate contributions.” 

Id. at 7 (quoting FEC v. Colorado Republican Fed. 

Campaign Comm., 533 U.S. 431, 464 (2001) (Colorado 

II)); id. at 29. Like the single aggregate contribution 

limit that was upheld in Buckley, the current aggregate 

limit on contributions to candidates helps to prevent the 

use of contributions to multiple candidates to circumvent 

limits on contributions to a single preferred candidate. 

Id. at 8-9; see Buckley, 424 U.S. at 38; cf. Colorado II, 

533 U.S. at 459-460 (describing political party’s system 

of “informal bookkeeping * * * to connect donors to 

candidates through the accommodation of a party”). 

The ease with which contributions to candidates can 

become contributions to political parties undercuts appellant’s argument (J.S. 17-26) that the former are less 

dangerous than the latter. In any event, appellant cites 

no authority for her assertion (J.S. 24) that the anticircumvention analysis should be “comparative.” This 

Court has never suggested that the threat of circumvention posed by direct contributions to political-party 

committees establishes a baseline against which all anticircumvention limits must be measured to determine 

their constitutionality. See, e.g., California Med. Ass’n 

v. FEC, 453 U.S. 182, 197-198 (1981) (upholding, with no 

mention of political parties, FECA’s base limit on con-
14 

tributions to non-party political committees as anticircumvention provision); cf. Colorado II, 533 U.S. at 

454-455 (rejecting as “too crude” the argument that 

political parties’ “power and experience * * * sets 

them apart from other political spenders”). 

c. Even apart from the risk that the base contribution limits may be circumvented by transfers of funds 

among the various recipients of contributions from a 

single donor, FECA’s aggregate limit on contributions 

to candidates serves a direct anti-corruption purpose. 

As previously explained, the absence of such a limit 

would permit individuals like appellant to contribute 

millions of dollars in each election cycle. Congress could 

reasonably conclude that an individual who made contributions of that magnitude to a party’s overall electoral 

efforts might acquire actual or perceived “improper 

influence” (Buckley, 424 U.S. at 27) over the party’s 

elected officials, even if no single contribution was likely 

to have that effect. 

3. Notwithstanding the aggregate limit on contributions to candidates, appellant (or anyone else) remains 

free to engage in the “symbolic act of contributing,” 

Buckley, 424 U.S. at 21, to every candidate in every 

federal election. Individuals are limited only in the 

amounts they can give to those candidates: the more 

candidates to whom they contribute, the smaller their 

average contributions must be. But that is not a substantial First Amendment burden, for “[t]he quantity of 

communication by the contributor does not increase 

perceptibly with the size of his contribution.” Ibid. 

As previously noted, the Court in Buckley did not 

dispute that the $25,000 limit at issue there “impose[d] 

an ultimate restriction upon the number of candidates 

and committees with which an individual may associate 
15 

himself by means of financial support.” 424 U.S. at 38. 

Notwithstanding that “modest restraint,” the Court 

upheld the aggregate limit against substantially the 

same constitutional challenge that appellant asserts in 

this case. Ibid. That holding remains good law, and it 

required the dismissal of appellant’s complaint. 

It is irrelevant that the Court in Buckley addressed 

only a facial constitutional challenge to FECA’s aggregate contribution limit, while appellant describes her 

own suit as raising an as-applied challenge. See J.S. 

App. 9. A plaintiff’s characterization of her own challenge is not controlling, Citizens United v. FEC, 130 S. 

Ct. 876, 893 (2010), and appellant identifies no unusual 

feature of her own circumstances that would render the 

aggregate limits invalid as applied to her if the limits 

are generally constitutional. J.S. App. 10. 

CONCLUSION 

The appeal should be dismissed for want of a substantial federal question. In the alternative, the judgment of the district court should be affirmed. 

Respectfully submitted. 

ANTHONY HERMAN

General Counsel 

LISA J. STEVENSON

Deputy General Counsel 

DAVID KOLKER

Associate General Counsel 

ADAV NOTI

Acting Assistant General 

Counsel 

STEVE N. HAJJAR

Attorney 

Federal Election 

Commission 

DONALD B. VERRILLI, JR. Solicitor General 

FEBRUARY 2013