NO. 12-536

In the

Supreme Court of the United States

________________

SHAUN MCCUTCHEON AND

REPUBLICAN NATIONAL COMMITTEE,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

________________

On Appeal from the United States 

District Court for the District of Columbia 

________________

BRIEF FOR APPELLANT 

SHAUN MCCUTCHEON

________________

Dan Backer

Paul Henry Jossey

DB CAPITOL 

STRATEGIES, PLLC

Suite 2109

209 Pennsylvania Ave. SE 

Washington, DC 20003

Jerad Wayne Najvar

NAJVAR LAW FIRM

1 Greenway Plaza, Ste. 100 

Houston, TX 77046

Michael T. Morley

Counsel of Record

223 Pawnee Rd.

Cranford, NJ 07016

(860) 778-3883

michaelmorleyesq

@hotmail.com

Counsel for Plaintiff-Appellant Shaun McCutcheon

May 6, 2013
QUESTION PRESENTED

Do the Bipartisan Campaign Reform Act’s 

aggregate limits on the total amount that an 

individual may contribute to all federal candidates, 

political party committees, and other political 

committees during a two-year federal election cycle, 2 

U.S.C. § 441a(a)(3)(A)-(B), violate the First 

Amendment? 
ii

PARTIES TO THE PROCEEDING

Appellants in this case are Shaun McCutcheon 

and the Republican National Committee (“RNC”). 

Appellee is the Federal Election Commission 

(“FEC”). 
iii

TABLE OF CONTENTS

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING ............................ii

TABLE OF AUTHORITIES.......................................vi

OPINIONS BELOW....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED .........................................1

STATEMENT OF THE CASE ....................................1

A. Aggregate Contribution Limits Under 

the Federal Election Campaign Act of 

1971................................................................2

B. Aggregate Contribution Limits and 

Current Campaign Finance Law..................5

C. The Proceedings Below ...............................11

D. The District Court’s Decision......................14

SUMMARY OF ARGUMENT...................................17

ARGUMENT..............................................................20

I. AGGREGATE CONTRIBUTION LIMITS 

SUBSTANTIALLY BURDEN FIRST 

AMENDMENT RIGHTS AND ARE 

SUBJECT TO RIGOROUS REVIEW................20

A. Contribution Limits Substantially 

Burden Fundamental First Amendment 

Rights...........................................................21

B. Aggregate Contribution Limits Infringe 

First Amendment Rights in Especially 

Pernicious Ways ..........................................24
iv

C. The Government Bears a Particularly 

Heavy Burden in Justifying this 

Substantial Restriction on Core First 

Amendment Rights......................................31

II. BCRA’S AGGREGATE CONTRIBUTION 

LIMITS DO NOT FURTHER ANY 

CONSTITUTIONALLY PERMISSIBLE 

GOVERNMENT INTEREST .............................34

A. Aggregate Contribution Limits Do Not 

Directly Prevent Corruption or the 

Appearance of Corruption...........................35

B. BCRA’s Aggregate Contribution Limits 

Do Not Prevent Circumvention of AntiCorruption Measures ..................................39

1. In the Years Since Buckley, 

Congress Has Eliminated the Need 

for Aggregate Contribution Limits 

as Anti-Circumvention Measures.........40

2. The Government’s Efforts to Portray 

BCRA’s Aggregate Limits as AntiCircumvention Measures Rest on 

Pure Speculation with No Factual 

Support..................................................44

3. The Aggregate Contribution Limits 

Do Not Prevent Any Cognizable Risk 

or Appearance of Corruption ................48

III. EVEN ASSUMING THAT AGGREGATE 

CONTRIBUTION LIMITS FURTHER A 

LEGITIMATE INTEREST, THEY ARE NOT 

SUFFICIENTLY TAILORED............................55

CONCLUSION ..........................................................62
v

STATUTORY APPENDIX

U.S. Const. amend. I ..........................................1a

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

2 U.S.C. § 441f....................................................8a

18 U.S.C. § 608 (1970 ed., Supp. IV)..................9a

11 C.F.R. § 100.5(g) ..........................................19a

11 C.F.R. § 110.4(b) ..........................................23a

11 C.F.R. § 110.5...............................................24a

11 C.F.R. § 110.6...............................................27a
vi

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ., 

431 U.S. 209 (1977) ............................................22

Arizona Free Enter. Club’s 

Freedom Club PAC v. Bennett, 

131 S. Ct. 2806 (2011) ................................ passim

Austin v. Michigan State 

Chamber of Commerce, 

494 U.S. 652 (1990) ............................................39

Buckley v. Valeo, 

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

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011) ......................6

Citizens Against Rent Control/Coalition for 

Fair Housing v. City of Berkeley, Cal., 

454 U.S. 290 (1981) .................................... passim

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................... passim

Colo. Republican Fed. 

Campaign Comm. v. FEC,

518 U.S. 604 (1996) .........................23, 32, 50, 56

Davis v. FEC, 

554 U.S. 724 (2008) .................................... passim

Eu v. San Francisco Cnty. 

Democratic Cent. Comm., 

489 U.S. 214 (1989) ............................................30

FEC v. Colorado Republican 

Federal Election Comm., 

533 U.S. 431 (2001) ......................................36, 47
vii

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) ..........................26, 39, 55, 59

FEC v. Nat’l Conservative 

Political Action Comm., 

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

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) ......................................21, 32

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) .................................... passim

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) ............................................47

McConnell v. FEC, 

540 U.S. 93 (2003) ........................................15, 36

Nixon v. Shrink Missouri PAC, 

528 U.S. 377 (2000) .................................... passim

Randall v. Sorrell, 

548 U.S. 230 (2006) ..........................23, 32, 33, 52

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) ..............................6

Storer v. Brown, 

415 U.S. 724 (1974) ......................................29, 31

Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986) ......................................24, 29

Timmons v. Twin Cities Area New Party, 

520 U.S. 351 (1997) ............................................31

Turner Broadcasting System, Inc. v. FCC, 

512 U.S. 622 (1994) ............................................45

W. Coast Hotel Co. v. Parrish, 

300 U.S. 379 (1937) ............................................53
viii

Constitutional Provisions

U.S. Const. art. I, § 2, cl. 1 ........................................31

U.S. Const. art. I, § 2, cl. 4 ........................................31

Statutes

2 U.S.C. § 431 ......................................................13, 25

2 U.S.C. § 439a (1970 ed., Supp. IV)...........................4

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

2 U.S.C. § 441a-1(a)...................................................26

2 U.S.C. § 441f .................................................8, 43, 45

18 U.S.C. § 591 ............................................................3

18 U.S.C. § 608 (1970 ed., Supp. IV).............2, 3, 4, 11

18 U.S.C. § 610 (1970 ed., Supp. IV)...........................3

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, § 403, 116 Stat. 113 .........14

Federal Election Campaign Act Amendments 

of 1974, Pub. L. No. 93-443, 

88 Stat. 1263 (Oct. 15, 1974)................................2

Pub. L. No. 92-225, 86 Stat. 3 (Feb. 7, 1972)..............2

Ariz. Rev. Stat. Ann. § 16-905(E) (2012) ..................54

Conn. Gen. Stat. § 9-611(c) (2013) ............................54

D.C. Code § 1-1163.33(b)(1).......................................54

Mass. Gen. Laws ch. 55, § 7A(a)(5) (2013)................54

Md. Ann. Code § 13-226(b) (2013).............................54

Me. Rev. Stat. Ann. tit. 21-A, 

§ 1015(3) (2013) ..................................................54

N.Y. Laws [Elec.] § 14-114 (2012).............................54

R.I. Gen. Laws § 17-25-10.1(a)(1) (2012) ..................54

Wash. Rev. Code § 42.17A.420 (2012) ......................54
ix

Wis. Stat. § 11.26(4) (2013) .......................................54

Wyo. Stat. Ann. § 22-25-102 (c)(ii) (2012).................54

Other Authorities

FEC, Price Index Adjustments for 

Contribution and Expenditure 

Limitations and Lobbyist Bundling 

Disclosure Threshold, Notice 2013-03, 78

Fed. Reg. 8,530, 8,532 (Feb. 6, 2013)...................6

H.R. Rep. No. 94-1057 (1976) (Conf. Rep.) .................8

National Conference of State Legislatures, 

State Limits on Contributions to 

Candidates (Jan. 20, 2010), available at

www.ncsl.org/print/legismgt/ 

limits_candidates.pdf .........................................54
OPINIONS BELOW

The opinion of the United States District Court 

for the District of Columbia denying Appellants’ 

motion for a preliminary injunction and dismissing 

the case is reported at 893 F. Supp. 2d 133 and 

reproduced in the appendix to the jurisdictional 

statement (“JS.App.”) at JS.App.1a-17a. The district 

court’s order granting final judgment to Appellee is 

reproduced at JS.App.17a. 

JURISDICTION

The district court entered final judgment on 

September 28, 2012. Appellants filed a timely notice 

of appeal on October 10, 2012, and a jurisdictional 

statement on October 26, 2012. This Court noted 

probable jurisdiction on February 19, 2013. This 

Court has jurisdiction under § 403(a)(3) of the 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 113-14. 

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States 

Constitution, as well as the pertinent provisions of 

BCRA and the Federal Election Campaign Act of 

1971, Pub. L. No. 92-225, 86 Stat. 3 (Feb. 7, 1972), as 

amended by the FECA Amendments of 1974, Pub. L. 

No. 93-443, 88 Stat. 1263 (Oct. 15, 1974), and the 

FECA Amendments of 1976, Pub. L. No. 94-283, 90 

Stat. 475 (May 11, 1976), are reproduced in the 

addendum to this brief. 

STATEMENT OF THE CASE

This case presents a constitutional challenge to 

aggregate limits on contributions to federal 
2

candidates and political committees. Aggregate 

contribution limits restrict the total amount of money 

an individual may contribute to all candidates or all 

political committees during an election cycle. 

Congress enacted the first federal aggregate 

contribution limit in a very different regulatory era, 

as a way of indirectly addressing numerous avenues 

through which a person could circumvent the 

statutory limit on contributions to a single candidate. 

Over the past few decades, however, Congress has 

fundamentally altered campaign finance law,

eliminating the very avenues for circumvention that 

aggregate limits purport to avert. In doing so, 

Congress has also eliminated any legitimate 

justification for the severe First Amendment burden 

that aggregate contribution limits impose.

A. Aggregate Contribution Limits Under 

the Federal Election Campaign Act of 

1971

The Federal Election Campaign Act (“FECA”) 

marked the federal government’s first major foray 

into campaign finance regulation. See Pub. L. No. 

92-225, 86 Stat. 3 (Feb. 7, 1972), as amended by the 

Federal Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, 88 Stat. 1263 (Oct. 15, 1974). In 

an effort to respond to the scandalous corruption that 

had surfaced in the years preceding its enactment, 

FECA restricted both “contributions” to candidates 

for federal office and “expenditures” relating to a 

“clearly identified candidate.” 18 U.S.C. §§ 608(b)-(c)

(1970 ed., Supp. IV).

As to the former, FECA prohibited any person 

from contributing more than $1,000 per primary or 
3

general election to a federal candidate. Id. 

§§ 591(a)(1), 608(b)(1), (b)(5). FECA defined the term 

“contribution” broadly to include “anything of value,” 

thereby covering both cash and most in-kind gifts. 

Id. § 591(e)(1). Its anti-earmarking provision 

clarified that the statutory limits applied to all 

contributions made “directly or indirectly” to a 

candidate, including those that were “in any way 

earmarked” or “directed through an intermediary or 

conduit to such candidate.” Id. § 608(b)(6).

FECA also prohibited political committees from 

contributing more than $5,000 per election to a 

federal candidate. Id. § 608(b)(2), (b)(5).1 FECA 

defined a “political committee” as any committee, 

club, association, or other group that raised or spent 

more than $1,000 in a single year in connection with 

one or more federal elections. Id. § 591(d). A 

political committee could be formed by a national 

political party (e.g., the RNC); a state or local

political party; a candidate (typically referred to as 

the candidate’s “principal campaign committee”); or 

like-minded individuals or groups (in which case the 

committee was referred to colloquially as a “political 

action committee” or “PAC”).

 

1 Although FECA generally prohibited corporations and labor 

unions from contributing to candidates and political 

committees, it allowed them to establish special affiliated 

political committees called “separate segregated fund[s]”—

funded by voluntary contributions from corporate shareholders 

and executives, or union members, respectively—from which 

contributions could be made. 18 U.S.C. § 610 (1970 ed., 

Supp. IV). 
4

Notably, FECA did not specifically limit the 

amount an individual could contribute to a particular

political party committee or PAC, or how much a 

PAC could contribute to a party committee or some 

other PAC. Moreover, FECA did not prevent a single 

person or entity from establishing multiple political 

committees; a single entity could form an endless 

stream of political committees, each of which could 

contribute up to $5,000 to the same candidate, see id. 

§ 608(b)(2). In the absence of some other statutory 

restriction, an individual therefore could have 

circumvented FECA’s $1,000 per-candidate 

contribution limit by contributing up to $5,000 in 

unearmarked funds to as many such committees as 

he wished, which in turn could have re-contributed

those funds to a particular candidate.

2 

To address the possibility that contributors 

might exploit these aspects of the system to 

circumvent the limits on contributions to candidates, 

FECA imposed an aggregate ceiling of $25,000 on the 

total amount of contributions that an individual 

could make in a single year to all candidates and 

non-candidate committees combined. Id. § 608(b)(3). 

In doing so, Congress effectively limited (albeit in a 

somewhat indirect way) how much an individual

could contribute to a political party committee, PAC, 

or series of related PACs.

This Court upheld FECA’s aggregate 

contribution ceiling in Buckley v. Valeo, 424 U.S. 1 

 

2 Surprisingly, FECA also allowed candidates to use political 

contributions for personal purposes unrelated to the campaign. 

See 2 U.S.C. § 439a (1970 ed., Supp. IV) (allowing contributions 

to be used for “any other lawful purpose”). 
5

(1976) (per curiam). The Court recognized that the 

ceiling burdened core First Amendment rights by 

“impos[ing] an ultimate restriction upon the number

of candidates and committees with which an 

individual may associate himself by means of 

financial support.” Id. at 38. It also noted, however,

that the ceiling helped prevent contributors from 

circumventing FECA’s base contribution limits. 

Without the ceiling, the Court explained, a person

could legally “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 [make] huge 

contributions to the candidate’s political party.” Id. 

Accordingly, although the Court emphasized that the 

issue had “not been separately addressed at length 

by the parties,” it concluded that FECA’s aggregate 

contribution ceiling could be upheld as “a corollary of 

the basic individual contribution limitation.” Id. 

B. Aggregate Contribution Limits and 

Current Campaign Finance Law

In the more than 35 years since this Court 

decided Buckley, Congress has substantially altered 

its regulatory scheme, most notably through the 

FECA Amendments of 1976 and BCRA, to foreclose 

the avenues Buckley identified for circumvention of 

per-candidate contribution limits. Under BCRA’s 

intricate, multi-layered scheme of contribution limits, 

an individual may contribute: 

● $2,600 per election to a federal candidate, 2 

U.S.C. § 441a(a)(1)(A); 

● $10,000 per year to a state or local political 

party committee, id. § 441a(a)(1)(D); 
6

● $32,400 per year to a national political party 

committee, id. § 441a(a)(1)(B);3 and

● $5,000 per year to any other political 

committee (PAC), id. § 441a(a)(1)(C).

4

These individual limits often are referred to as “base 

limits.”5

Congress also has strictly limited contributions 

from political party committees and PACs. National, 

state and local party committees, as well as 

multicandidate PACs, may contribute up to $5,000 

 

3 The six major national party committees are the Democratic 

National Committee (“DNC”), Republican National Committee 

(“RNC”), Democratic Senatorial Campaign Committee 

(”DSCC”), National Republican Senatorial Committee (“NRSC”), 

Democratic Congressional Campaign Committee (“DCCC”), and 

the National Republican Congressional Committee (“NRCC”). 

4 Following this Court’s decision in Citizens United v. FEC, 

558 U.S. 310 (2010), an individual’s contributions to a noncandidate, non-party political committee that makes 

independent expenditures (commonly referred to as a “Super 

PAC”), are not subject to contribution limits. SpeechNow.org v. 

FEC, 599 F.3d 686, 296 (D.C. Cir. 2010); Carey v. FEC, 791 F.

Supp. 2d 121, 135 (D.D.C. 2011).

5 BCRA itself established base limits lower than these on 

contributions to candidates and national party committees, but 

indexed them for inflation, leading to the higher figures 

specified above. See 2 U.S.C. § 441a(c)(1)(B). Its base 

contribution limits to state and local parties, and to other 

political committees, in contrast, are not indexed. The FEC

announced the most recent limits, modified based on the 

consumer price index, on February 6, 2013. See FEC, Price 

Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 

Notice 2013-03, 78 Fed. Reg. 8,530, 8,532 (Feb. 6, 2013). 
7

per election to any particular candidate6 or PAC. Id.

§ 441a(a)(2)(A), (C).7 Additionally, a multicandidate 

PAC may contribute a maximum of $15,000 to a 

national party committee or $5,000 to a state or local 

party committee each year. Id. § 441a(a)(2)(B), (C).

8

These restrictions are bolstered by antiproliferation rules, enacted shortly after Buckley in 

the FECA Amendments of 1976, which prevent 

individuals and entities from establishing multiple 

 

6 One exception to this rule is that the national party 

committees and corresponding national senatorial campaign 

committees (i.e. the RNC and NRSC, or the DNC and DSCC) 

are collectively permitted to contribute a combined total of 

$35,000, indexed for inflation (currently $45,400), to a Senate 

candidate. 2 U.S.C. § 441a(h).

7 Base limits on contributions from PACs and political party 

committees generally are not indexed for inflation. Nonmulticandidate PACs are subject to most of the same base 

contribution limits as individuals, see 2 U.S.C. § 441a(a)(1)(A), 

although the aggregate limits do not apply to them, id. 

§ 441a(a)(3).

8 Although, as noted above, BCRA limits the amount that a 

national, state, or local political party committee may contribute 

to each candidate, 2 U.S.C. § 441a(a)(2)(A), political party 

committees of the same party may transfer unlimited amounts 

of funds to each other, id. § 441a(a)(4). Additionally, the 

national committee of each political party (i.e., the DNC and 

RNC), as well as each party’s state committees, may make a 

certain amount of coordinated expenditures with federal 

candidates “who [are] affiliated with such party.” Id. 

§ 441a(d)(1)-(3). These coordinated expenditures do not count 

against that party committee’s base contribution limits to those 

candidates. Id. § 441a(d)(1). The exact amount of a national or 

state party committee’s coordinated spending authority for each 

of its candidates is determined by a statutory formula. Id. 

§ 441a(d)(2)-(3). 
8

PACs in order to circumvent base limits. Under 

these rules, all contributions made by all political 

committees established, financed, maintained, or 

controlled by the same corporation, labor union, or 

other person—“including any parent, subsidiary, 

branch, division, department, or local unit” of any 

such entity—are “considered to have been made by a 

single political committee.” Id. § 441a(a)(5). Thus, 

for example, all PACs set up by the AFL-CIO and its 

state and local bodies, or by state and local Chambers 

of Commerce, now “are treated as a single political 

committee.” H.R. Rep. No. 94-1057, at 58 (1976)

(Conf. Rep.). Additionally, federal law now prohibits 

candidates from “convert[ing]” campaign 

contributions “to personal use.” 2 U.S.C. 

§ 439a(b)(1). And a person may not evade any 

contribution limits by making a contribution using 

someone else’s name or funds. Id. § 441f. 

These fundamental changes in campaign finance 

law have eliminated Buckley’s rationale for 

upholding FECA’s aggregate contribution ceiling. 

Because Congress now (among other things) directly 

limits the amount an individual may contribute to 

each political party committee or PAC and treats 

related PACs as a single entity, a person no longer 

may legally “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 [make] huge 

contributions to the candidate’s political party.” 

Buckley, 424 U.S. at 38. In other words, aggregate 

contribution limits are no longer needed to foreclose 

an otherwise-lawful method of circumventing percandidate contribution limits. 
9

Nevertheless, rather than doing away with this 

relic, BCRA imposed a new, more robust set of 

aggregate limits on top of its base contribution limits. 

Under BCRA, an individual currently may contribute 

a total of $48,600 to all federal candidates combined, 

see 2 U.S.C. § 441a(a)(3)(A),9 and a total of $74,600 to 

all non-candidate political committees (i.e., national 

party committees, state and local party committees, 

and PACs) combined, see id. § 441a(a)(3)(B), in any 

two-year federal election cycle.10 Of the $74,600 that 

an individual may give to non-candidate committees, 

no more than $48,600 may be contributed to state 

and local party committees or PACs, id. 

§ 441a(a)(3)(B). BCRA thus imposes the following 

aggregate limits on individuals for the current 

federal election cycle:

 

9 All of BCRA’s aggregate contribution limits are indexed for 

inflation. See supra note 4. 

10 A federal election cycle “begins on January 1 of an oddnumbered year and ends on December 31 of the next evennumbered year.” 2 U.S.C. § 441a(a)(3). 
10

Total contributions to candidate 

committees

2 U.S.C. § 441a(a)(3)(A) $48,600

Total contributions to

non-candidate political committees

2 U.S.C. § 441a(a)(3)(B) $74,600

Total contributions to any

non-candidate committees

2 U.S.C. § 441a(a)(3)(B) $48,600

Additional amount that may

be contributed only to

national party committees $26,000

TOTAL BIENNIAL LIMITS ON 

POLITICAL CONTRIBUTIONS $123,200

Congress enacted these aggregate contribution 

limits in addition to the base limits on how much a 

person may contribute to any particular candidate,

national party committee, state or local party 

committee, or PAC. Aggregate limits therefore 

prevent people from giving an otherwise permissible 

amount of money that Congress did not believe 

raised corruption-related concerns to “too many” 

different candidates or committees. For instance, 

under BCRA, an individual may contribute up to 

$5,200 to a single candidate in the current federal 

election cycle ($2,600 for both the primary and 

general elections) without creating a risk of 

corruption or the appearance of corruption that 

Congress deemed necessary to combat. See 2 U.S.C. 

§ 441a(a)(1)(A); 78 Fed. Reg. at 8,532 (announcing 

current limits based on inflation). But if a person 
11

contributes that same amount to more than nine 

different candidates for federal office, she would 

violate BCRA’s $48,600 aggregate candidate 

contribution limit.

11 Similarly, while BCRA 

ostensibly permits a person to contribute up to 

$32,400 to a national party committee in every 

election cycle, its $74,600 aggregate limit on 

contributions to non-candidate committees means 

that a person may contribute the maximum amount 

to only two such committees. 

C. The Proceedings Below

1. Appellant Shaun McCutcheon holds firm 

convictions about the proper role of government and 

the importance of ensuring that elected officials 

adhere to constitutional limitations on their 

authority. Compl. ¶ 22 (Doc. 1). He opposes 

numerous “ill-conceived and overreaching laws” and 

wishes to both express his support for and facilitate 

the election of federal officeholders who share his 

beliefs and will seek to advance them legislatively. 

Id. ¶¶ 22-24. 

As of June 18, 2012, when the complaint in this 

case was filed, McCutcheon had contributed a total of 

$33,088 during the 2012 election cycle in 

congressional races across the nation—$1,776 to each 

of 15 challengers attempting to unseat incumbents. 

Id. ¶¶ 26-27. Each contribution complied with 

BCRA’s base candidate contribution limit. Id. ¶ 29. 

 

11 Under FECA as originally passed, in contrast, a person 

could contribute the full statutory amount of $2,000 to 12 

different candidates without exceeding the aggregate 

contribution ceiling of $25,000. See 18 U.S.C. § 608(b)(1), (3) 

(1970 ed., Supp. IV). 
12

McCutcheon also wished to contribute $1,776 to 12

other candidates for Congress, mostly nonincumbents interested in advancing the cause of 

liberty. Doing so, however, would have violated the 

aggregate candidate contribution limit of $48,600 per 

election cycle. Id. ¶¶ 28-30. Accordingly, BCRA’s 

aggregate contribution limit prevented McCutcheon 

from associating with, demonstrating his support for, 

and assisting numerous candidates for federal office 

whom he believed share his political philosophy, and 

whose messages he embraced. Id. ¶¶ 30-33. 

As of June 2012, McCutcheon also had 

contributed $1,776 to the RNC, the NRSC, and the 

NRCC, and a total of $27,328 to several other noncandidate committees during the 2012 election cycle. 

Id. ¶¶ 35-36. He did not earmark these contributions

in any way. Id. ¶ 37. McCutcheon wished and 

intended to make further contributions to various 

non-candidate committees, including an additional 

$25,000 to each of the three Republican national 

party committees, which would have been 

permissible under BCRA’s $32,400 base limit on 

contributions to national parties. Id. ¶¶ 37-38. He 

was unable to do so, however, because such 

contributions would have violated BCRA’s $74,600 

aggregate limit on contributions to non-candidate 

political committees. Id. 

McCutcheon presently wishes to contribute a 

total of more than $60,000 to candidates intending to 

run in the 2013-14 election cycle, as well as a total of 

at least $75,000 to the three Republican national 

party committees, but BCRA’s aggregate contribution 

limits prohibit him from doing so. Id. ¶¶ 32, 33, 38.
13

2. Appellant RNC is a national political party 

committee under federal law. 2 U.S.C. § 431(14). 

The Rules of the Republican Party charge the RNC

with “the general management of the Republican 

Party, based upon the rules adopted by the 

Republican National Convention.” Compl. ¶ 12. The 

RNC also promotes issue positions and supports 

candidates for office, with its primary electoral 

emphasis on presidential elections. Id. ¶ 44. 

Although a core part of the RNC’s mission, direct 

support to candidates makes up a relatively small 

portion of the RNC’s overall spending. For example, 

during the 2012 presidential election, the RNC spent 

a total of $386,180,565, of which it contributed 

approximately 0.07% percent to candidates, and 

spent approximately 5.8% for coordinated 

expenditures with specific candidates (97% of the 

RNC’s coordinated spending was on behalf of the 

party’s presidential nominee).12 In the 2009-10 nonpresidential election cycle, the RNC spent a total of 

$210,769,855, of which approximately 0.03% was 

spent on direct candidate contributions, and 0.5% 

was spent on coordinated expenditures.

13

The RNC wishes to receive the contributions 

McCutcheon would have made, and would make in 

the future, but for BCRA’s aggregate limit on 

contributions to non-candidate committees. Id. ¶ 41. 

The RNC also has had to decline or refund 

contributions from other individuals that were 

 

12 See supra note 8. 

13 These figures are available at http://www.fec.gov/finance/ 

disclosure/candcmte_info.shtml.
14

permissible under the base national party 

contribution limit, but illegal under the aggregate 

limits. Id. ¶ 40. 

3. On June 22, 2012, Appellants filed a five-count 

complaint before a three-judge panel of the U.S. 

District Court for the District of Columbia, pursuant 

to BCRA’s special judicial review provisions, see

BCRA, § 403, 116 Stat. 113-14. They alleged, among 

other things, that BCRA’s aggregate limits on 

contributions to candidates (Count 4) and noncandidate committees (Count 2) are facially 

unconstitutional under the First Amendment. They 

also alleged that BCRA’s aggregate non-candidate

committee contribution limit is unconstitutional as 

applied to national political party committees, such 

as the RNC (Count 1). Accordingly, Appellants 

sought a preliminary injunction against enforcement 

of the challenged provisions. The FEC moved to 

dismiss the case. 

D. The District Court’s Decision

The panel held a consolidated hearing on the 

cross-motions, denied the preliminary injunction, and

granted the FEC’s motion to dismiss the case. 

JS.App.1a-17a. Notwithstanding the massive 

changes in campaign finance law since Buckley that 

now directly prevent circumvention of the base 

candidate contribution limit, the court concluded that 

BCRA’s aggregate contribution limits are a valid 

anti-circumvention measure. JS.App.13a. 

After acknowledging the “possibility that 

Citizens United undermined the entire contribution 

limits scheme,” the court began its analysis by 

stating that limits on campaign contributions are 
15

subject to a “lower” level of constitutional scrutiny 

“because they primarily implicate the First 

Amendment rights of association, not expression, and 

contributors remain able to vindicate their 

associational rights in other ways.” JS.App.8a, 16a. 

According to the court, Congress may abridge this 

core First Amendment right so long as its restrictions 

are “‘closely drawn to match a sufficiently important 

interest.’” JS.App.6a (quoting McConnell v. FEC, 540 

U.S. 93, 136 (2003) (internal quotation marks 

omitted), overruled in part on other grounds by 

Citizens United v. FEC, 130 S. Ct. 876, 913 (2010)). 

The court noted that Congress has an “important 

interest” in preventing corruption, the appearance of 

corruption, and “circumvention of contribution limits 

imposed to further [those] anticorruption interest[s].” 

JS.App.9a. In the court’s view, Congress’ interest in 

combating corruption is not limited to bribery or quid 

pro quo arrangements, but also extends to preventing 

elected officials from “acting contrary to their 

representative obligations.” JS.App.10a. 

Turning to BCRA’s aggregate contribution limits, 

the district court acknowledged that the avenue for 

circumvention this Court identified in Buckley no 

longer exists, JS.App.2, but hypothesized a new, 

rather convoluted avenue of circumvention that 

aggregate limits theoretically might help to foreclose. 

According to the court, without aggregate limits,

conniving actors might form a joint fundraising 

committee “comprising a party’s presidential 

candidate, the party’s national party committee, and 

most of the party’s state party committees,” and a 

person “might” decide to contribute a half-million 
16

dollar check to this hypothetical entity. JS.App.12a. 

Since local, state, and national political party 

committees “may transfer unlimited amounts of 

money” to each other, JS.App.12a (citing 2 U.S.C. 

§ 441a(a)(4)), the court speculated that the various 

individual committees comprising this hypothetical 

joint fundraising committee “might” decide to 

transfer their shares of the contribution to a single 

party committee. JS.App.12a. The recipient 

committee, in turn, “might use th[at] money for 

coordinated expenditures” in consultation with a 

candidate. JS.App.12a. And that candidate, in turn, 

might feel “gratitude” toward the original 

contributor. JS.App.12a. 

The court acknowledged that this daisy chain of 

events is rather far-fetched, as it is “unlikely that so 

many separate entities would willingly serve as 

conduits for a single contributor’s interests.” 

JS.App.12a. But because the court could “imagine” 

such a situation, it concluded that BCRA’s aggregate 

limits are constitutional. JS.App.12a. 

In doing so, the court recognized the severe 

burden that aggregate contribution limits impose on 

First Amendment rights. For example, it pointed out 

that if a person wished to contribute to one candidate 

in all 468 federal races (435 House races and 33 

Senate races) in 2006, “he would be limited to 

contributing $85.29 per candidate for the entire 

election cycle.” JS.App.14a. The court was not 

troubled by the resulting burden on constitutional 

rights, however, because it was satisfied that 

“individuals remain able to volunteer, join political 

associations, and engage in independent 
17

expenditures.” JS.App.15a. Accordingly, the court 

denied Appellants’ motion for a preliminary 

injunction and dismissed the case. 

SUMMARY OF ARGUMENT

BCRA’s aggregate contribution limits impose an 

unconstitutional burden on core First Amendment 

activity. Aggregate contribution limits are a relic of a 

past era of campaign finance regulation and should 

have been discarded years ago. Because the 

circumvention problem they were originally designed 

to target no longer exists, aggregate limits are now 

left prohibiting constitutionally protected activity for 

no permissible reason. They are fundamentally 

incompatible with the First Amendment and cannot 

survive any meaningful concept of rigorous scrutiny. 

While all contribution limits burden core First 

Amendment rights, aggregate contribution limits are 

far more invasive than base contribution limits that 

limit the amount a person may contribute to a 

particular candidate, political party committee, or 

PAC. Aggregate limits operate to prevent an 

individual from associating with, expressing support 

for, and assisting “too many” candidates, political 

party committees, or PACs in a single election. A 

limit on how many candidates or entities someone 

may associate with or support is fundamentally 

different in kind from a limit on how much someone 

may support or associate with any particular 

candidate or entity. The government therefore bears 

a particularly heavy burden in justifying this severe 

infringement on core First Amendment activity.

The government has not come close to meeting 

that burden. As a threshold matter, the government 
18

has failed to establish that these limits further any

important interest at all. Congress already has 

determined the threshold amount below which a 

contribution to a candidate, party committee, or PAC 

does not raise a cognizable corruption concern. 

Whether a person contributes that permissible 

amount to one candidate or 20 candidates makes no 

constitutional difference, as the risk of corruption or 

the appearance of corruption remains the same as to 

each candidate: non-cognizable. Accordingly, the 

only conceivable justification for aggregate limits is 

as a method of preventing circumvention of base 

contribution limits.

When this Court upheld FECA’s ceiling on total 

contributions in Buckley, the government could make 

that anti-circumvention argument, as Congress had 

not limited the amount an individual could 

contribute to a political party committee or PAC at 

that time. In that context, FECA’s ceiling served the 

anti-circumvention purpose of preventing individuals 

from funneling massive donations to candidates 

through political party committees and PACs, which 

otherwise would have been legal under FECA. 

Under current campaign finance law, that is simply 

no longer a realistic or legitimate concern. Current 

law not only imposes base limits on contributions to 

candidates, political party committees, and PACs, 

but contains numerous other, much more direct anticorruption and anti-circumvention measures. 

Because the circumvention route this Court 

identified in Buckley is no longer legal, it is no longer 

something aggregate limits are needed to address. 
19

Recognizing as much, the government has 

attempted to hypothesize new avenues of 

circumvention that aggregate limits theoretically 

might help foreclose. But even the district court was

forced to concede that its proposed hypothetical was 

unlikely to occur, and the government has presented 

no evidence of such transactions ever happening. 

The circumvention problem the aggregate limits 

purport to target therefore remains a hypothetical 

one and nothing more. Even if the government’s 

hypothetical scenarios were at all likely to occur, any 

cognizable risk of quid pro quo corruption would be 

alleviated by the absence of prearrangement or 

coordination between the initial contributor and the 

candidate who ultimately received the contributed 

funds. Accordingly, BCRA’s aggregate limits in fact 

serve no purpose other than to “equalize” the relative 

ability of individuals to participate in the political 

process. That kind of equalization interest has no 

place in this context; the government may not seek to 

prevent people from exercising their First 

Amendment rights robustly. 

In any event, even if some small sliver of the 

contributions that aggregate limits prohibit posed a 

circumvention or corruption problem, those limits 

would not be a closely drawn means of addressing it. 

Congress cannot effectively limit the number of 

candidates or political committees with which a 

person may associate based on a mere hunch that a 

few clever contributors might violate BCRA’s 

earmarking provision and attempt to have a party 

committee or PAC funnel their contributions to a 

particular recipient. If Congress is truly concerned 

about joint fundraising committees or transfers of 
20

funds between candidates, political party 

committees, or PACs, then it should devise a solution 

closely drawn to target that specific problem. 

In short, BCRA’s aggregate limits do not further 

any legitimate anti-corruption or anti-circumvention 

interest. Even if they did, they would be a drastically 

disproportionate response to any conceivable problem 

they might be designed to address. Accordingly, 

BCRA’s aggregate limits impermissibly burden core 

First Amendment rights and are unconstitutional. 

ARGUMENT

I. AGGREGATE CONTRIBUTION LIMITS 

SUBSTANTIALLY BURDEN FIRST 

AMENDMENT RIGHTS AND ARE 

SUBJECT TO RIGOROUS REVIEW.

Aggregate contribution limits burden core First 

Amendment rights and can survive only if they 

satisfy a rigorous form of constitutional scrutiny. 

While all contribution limits infringe First 

Amendment rights and are subject to exacting 

constitutional scrutiny, aggregate limits impose an 

especially pernicious constitutional burden, and 

therefore are that much harder for the government to 

justify. Unlike base contribution limits, which limit 

the extent to which an individual may associate 

herself with a single candidate or political party

committee, aggregate contribution limits preclude a 

person from associating with, expressing support for, 

or attempting to assist too many candidates, parties, 

or political committees. 

By preventing a person from making “too many” 

otherwise legal and innocuous contributions, 

aggregate limits effectively penalize those who wish 
21

to exercise their First Amendment rights robustly. 

And this burden cannot easily be overcome, as there 

is an obvious practical limit to how many different 

candidates, parties, or political committees one 

person can support through on-the-ground efforts. 

Accordingly, the government bears a particularly 

heavy burden in justifying this severe imposition on 

constitutionally protected rights.

A. Contribution Limits Substantially 

Burden Fundamental First Amendment 

Rights.

1. Contribution limits substantially infringe the 

First Amendment rights of contributors, candidates, 

and political parties. “[T]he right of association is a

basic constitutional freedom that is closely allied to 

freedom of speech and a right which, like free speech, 

lies at the foundation of a free society.” FEC v. Nat’l 

Right to Work Comm. (“Right to Work”), 459 U.S. 197, 

206-07 (1982) (quotation marks and citations 

omitted). In a democratic society, the ability to 

associate with others in the political process is at the 

core of this fundamental right, “‘enhanc[ing]’” the 

“‘effective advocacy of both public and private points 

of view.’” Buckley, 424 U.S. at 15 (quoting NAACP v. 

Alabama, 357 U.S. 449, 460 (1958)). 

This right to “join together ‘for the advancement 

of beliefs and ideas’ is diluted if it does not include 

the right to pool money through contributions, for 

funds are often essential if ‘advocacy’ is to be truly or 

optimally ‘effective.’” Buckley, 424 U.S. at 65-66 

(quoting NAACP, 357 U.S. at 460). “‘Making a 

contribution, like joining a political party, serves to 

affiliate a person with a candidate’” in an especially 
22

“‘important’” manner, and “‘enables like-minded 

persons to pool their resources in furtherance of 

common political goals.’” Abood v. Detroit Bd. of 

Educ., 431 U.S. 209, 256 (1977) (Powell, J., 

concurring) (quoting Buckley, 424 U.S. at 22). 

Contribution limits “impose direct quantity 

restrictions on political communications and 

association[.] ... Rather than potentially deterring or 

diminish[ing] the effectiveness of expressive activity, 

these limits stop it cold.” Arizona Free Enter. Club’s 

Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2838-

39 (2011) (Kagan, J., dissenting) (internal quotation 

marks omitted); see also Buckley, 424 U.S. at 14, 23 

(holding that limits on contributions to candidates or 

political party committees “operate in an area of the 

most fundamental First Amendment activities” and 

“implicate fundamental First Amendment interests”). 

Thus, limits on contributions to candidates or parties 

entail “significant interference” with associational 

rights. Nixon v. Shrink Missouri PAC, 528 U.S. 377, 

387-88 (2000).

2. Contribution limits also infringe the First 

Amendment right to freedom of expression. Because 

a contribution “serves as a general expression of 

support for the candidate and his views,”

contribution limits restrict a person’s “ability to 

engage in free communication.” Buckley, 424 U.S. at 

20-21; see also id. at 21 (noting that the size of a 

contribution provides a “very rough index of the 

intensity of the contributor’s support for the 

candidate”).

Indeed, many post-Buckley cases have recognized 

that the expressive component of political 
23

contributions is even greater than that. The “right of 

association [and] the right of expression” often 

“overlap and blend” in the context of contribution 

limits. Citizens Against Rent Control/Coalition for 

Fair Housing v. City of Berkeley, Cal., 454 U.S. 290, 

300 (1981). People who contribute to a candidate or 

PAC “obviously like the message they are hearing ... 

and want to add their voices to that message; 

otherwise they would not part with their money.” 

FEC v. Nat’l Conservative Political Action Comm. 

(“NCPAC”), 470 U.S. 480, 495 (1985); see also Colo. 

Republican Fed. Campaign Comm. v. FEC (“Colorado 

I”), 518 U.S. 604, 636 (1996) (Thomas, J., concurring) 

(“When an individual donates money to a candidate 

or to a partisan organization, he enhances the 

donee’s ability to communicate a message and 

thereby adds to political debate, just as when that 

individual communicates the message himself.”). For 

all of these reasons, this Court has long recognized 

that political contributions are “entitled to full First 

Amendment protection.” NCPAC, 470 U.S. at 495.

3. In addition, contribution limits can “harm the 

electoral process by preventing challengers from 

mounting effective campaigns against incumbent 

officeholders, thereby reducing democratic 

accountability.” Randall v. Sorrell, 548 U.S. 230, 249 

(2006) (plurality op.). As the government itself has 

pointed out, such limits can have “deleterious effects” 

on the political process and provide a “substantial 

advantage for wealthy candidates,” by “mak[ing] it 

harder for candidates who are not wealthy to raise 

funds.” Davis v. FEC, 554 U.S. 724, 743 (2008)

(citing Br. for Appellee FEC at 33). 
24

B. Aggregate Contribution Limits Infringe 

First Amendment Rights in Especially 

Pernicious Ways. 

1. BCRA’s aggregate limits on contributions to 

candidates and political committees impose 

especially pernicious burdens on First Amendment 

rights. Unlike a base contribution limit, which limits 

how much a person may give to any one candidate or 

political committee, an aggregate contribution limit 

“impose[s] an ultimate restriction upon the number of 

candidates and committees with which an individual 

may associate himself by means of financial support.” 

Buckley, 424 U.S. at 38 (emphasis added). 

In other words, although couched as limitations 

on how much someone may contribute, these

provisions actually operate to prevent a person from 

associating with, demonstrating support for, and 

assisting “too many” candidates or parties in an 

election cycle. Particularly if an individual wishes to 

contribute the full legal amount of $5,200 ($2,600 for 

the primary and general elections) to the candidates 

she supports, the aggregate candidate contribution 

limit of $48,600 prohibits her from exercising that 

right as to more than a handful of candidates. The 

limit thus constrains “associational opportunities at 

the crucial juncture at which the appeal to common 

principles may be translated into concerted action, 

and hence to political power in the community.” 

Tashjian v. Republican Party of Conn., 479 U.S. 208, 

216 (1986).

Unlike a burden on how much someone may 

contribute to the candidates or committees she 

supports, a burden on how many candidates or 
25

committees a person may contribute to cannot

meaningfully be overcome through alternative

avenues of exercising First Amendment rights. Cf. 

Buckley, 424 U.S. at 22 (noting that base contribution 

limits “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”). 

Although an individual may be able to volunteer on 

behalf of a few local campaigns and place bumper 

stickers from several candidates on her vehicle, 

campaign contributions are the only realistic way to 

meaningfully and publicly demonstrate support for, 

associate with, and assist a variety of candidates and 

state parties, particularly when they are spread 

across the country.14 

Alternatively, a person may reduce the size of 

her contribution to various candidates to whom she 

would otherwise contribute the legal maximum 

under the base limits, but that means diminishing 

the extent of her association with, expression of 

support for, and assistance to them. Accordingly, to 

the extent aggregate contribution limits leave open 

other avenues for exercising First Amendment rights, 

those avenues are much “more burdensome than the 

one it forecloses,” FEC v. Mass. Citizens for Life, Inc., 

 

14 Even if a person practically were able to travel throughout 

the nation to personally associate with and volunteer on behalf 

of numerous candidates, BCRA limits her ability to do so. 

Under BCRA, a person may spend only $1,000 for unreimbursed 

travel expenses on behalf of a candidate (and $2,000 on behalf of 

“all political committees of a political party”). 2 U.S.C. 

§ 431(8)(B)(iv). Any unreimbursed funds over that amount 

count as contributions to that candidate or party, which are 

subject to BCRA’s base contribution limits. Id. § 441a(a)(1). 
26

479 U.S. 238, 255 (1986) (plurality op.), which makes

aggregate limits a far more substantial infringement 

on First Amendment rights than base contribution 

limits. 

2. Indeed, BCRA’s aggregate contribution limits 

are far more burdensome than the laws this Court 

invalidated in Davis and Bennett, which likewise 

imposed special burdens and penalties on individuals 

who chose to exercise their First Amendment rights

robustly. Davis involved BCRA’s so-called 

“Millionaire’s Amendment,” 2 U.S.C. § 441a-1(a), a 

provision that was triggered when a congressional 

candidate spent at least $350,000 of his own funds on 

the race and those personal expenditures 

substantially exceeded the campaign contributions he 

received from others. Davis, 554 U.S. at 736. Once 

triggered, the amendment raised the limits on 

contributions to other candidates in the race, allowed

those other candidates to accept contributions from 

individuals who had reached the aggregate candidate 

contribution limit, and permitted political party 

committees to make unlimited coordinated 

expenditures on their behalf. 2 U.S.C. § 441a-1(a). 

The Court concluded that the Millionaire’s 

Amendment imposed a “special and potentially 

significant burden” and “an unprecedented penalty” 

on a candidate who “robustly exercises [her] First 

Amendment right” to spend personal funds in 

support of her candidacy. Davis, 554 U.S. at 738-39. 

As the Court explained, Congress may not “require[]

a candidate to choose between the First Amendment 

right to engage in unfettered political speech” and 

avoiding “discriminatory fundraising limitations.” 

Id. at 739.
27

Similarly, in Bennett, this Court struck down a 

state law under which, “[o]nce a privately financed 

candidate has raised or spent more than [$21,479], 

each personal dollar spent by the privately financed 

candidate result[ed] in an award of almost one 

additional dollar to his opponent[s].” 131 S. Ct. at 

2818. The Bennett Court held that, like the law in 

Davis, this scheme imposed “‘a special and 

potentially significant burden’ [on a privately funded 

candidate] when choosing to exercise his First 

Amendment right to spend funds on behalf of his 

candidacy.” Id. 

The Court further emphasized the especially 

severe burdens that the law imposed on the First 

Amendment rights of third parties who wished to 

make independent expenditures in support of the 

privately financed candidate. As the Court 

explained, “[o]nce the spending cap is reached, an 

independent expenditure group that wants to support 

a particular candidate ... can only avoid triggering 

matching funds” for that candidate’s opponents by 

either “opt[ing] to change its message from one 

addressing the merits of the candidates to one 

addressing the merits of an issue, or refrain[ing] from 

speaking altogether.” Id. at 2819-20. The Court 

concluded that “[p]resenting independent 

expenditure groups with such a choice makes the 

matching funds provision particularly burdensome” 

to those third parties. Id. at 2820. 

Aggregate contribution limits burden First 

Amendment rights in much the same way that the

Court found impermissible in Davis and Bennett. 

They prohibit a person from exercising her
28

constitutional right to make contributions to an 

ideologically aligned candidate, political party

committee, or PAC simply because she already has 

made “too many” other constitutionally protected 

contributions to entirely distinct candidates, political 

party committees, or PACs. Such a blanket 

prohibition on supporting candidates and political 

committees of choice is a “special” and “significant 

burden” on First Amendment rights. Davis, 554 U.S. 

at 739; accord Bennett, 131 S. Ct. at 2819-20. 

Just as in Davis and Bennett, this significant 

burden is triggered by a person’s decision to “robustly 

exercise [her] First Amendment right[s],” by 

associating herself with, and demonstrating her 

support for, too many different candidates, party 

committees, and PACs. Davis, 554 U.S. at 739; 

accord Bennett, 131 S. Ct. at 2818. Aggregate limits 

thus force people to choose between engaging in 

constitutionally protected association and expression 

up to the legal base limit with certain candidates and 

parties, and retaining the right to associate with, and 

express support for, other candidates and parties. Cf. 

Davis, 554 U.S. at 740 (the government may not force 

a person to choose between “abid[ing] by a limit” on 

constitutionally protected activities and “endur[ing] a 

burden” on his First Amendment rights); Bennett, 

131 S. Ct. at 2820 (a law may not “forc[e] [a] choice” 

on people regarding their First Amendment rights). 

3. Aggregate contribution limits also interfere

with fundamental First Amendment rights in a 

subtler, more perfidious way—by splintering political 

parties and creating a conflict of interest among each 

party’s various candidates, state political committees, 
29

and national political committees. Cf. Storer v. 

Brown, 415 U.S. 724, 736 (1974) (“[S]plintered 

parties and unrestrained factionalism may do 

significant damage to the fabric of government.”); 

accord Tashjian, 479 U.S. at 223. Aggregate 

contribution limits pit a party’s various federal 

candidates, as well as its state and national party 

committees, against each other for the limited dollars 

that a person is legally permitted to contribute 

during that election cycle. 

To take the simplest example, in the current

election cycle, a contributor such as McCutcheon may 

wish to contribute the legal maximum of $32,400 to 

each of the Republican Party’s three national 

political committees (i.e., the RNC, which focuses 

primarily on presidential elections and party 

building; the NRSC, which focuses on Senate races; 

and the NRCC, which focuses on House races). See 

Compl. ¶ 38. The $74,600 aggregate political 

committee contribution limit, however, gives each 

national party committee a substantial incentive to 

dissuade such a potential contributor from giving the 

maximum $32,400 to each of the others, because he 

then would be legally prohibited from contributing

any more than approximately $10,000 to the 

remaining committee. 

A similar conflict of interest exists between the 

three national party committees and the various 

state party committees because every dollar that a 

person contributes to a state committee’s federal 

account (up to the $48,600 sub-limit) is one less 

dollar she may contribute to a national party 
30

committee.

15 This conflict exists among the various 

state party committees as well; generous 

contributions to a handful of Democratic or 

Republican state parties will quickly reach the 

$48,600 sub-limit, making it impossible for that 

contributor to associate with, demonstrate her 

support for, and realistically assist other state 

parties. 

As the complaint demonstrates, this problem 

further extends to individual candidates. During the 

last election cycle, McCutcheon’s support of certain 

candidates made it illegal for him to contribute to the 

campaigns of others in a way that was especially 

meaningful to him (i.e., contributing exactly $1,776 to 

each candidate). See Compl. ¶¶ 27, 28. This puts a 

party’s congressional nominees in the uncomfortable 

position of competing against each other—rather 

than their true opponents from the other party—for a 

share of the limited funds each contributor is legally 

permitted to give.

This artificial and unnecessary internecine 

competition that aggregate limits inherently 

generate is likely to “color the parties’ message and 

interfere with the parties’ decisions as to the best 

means to promote that message.” Eu v. San 

Francisco Cnty. Democratic Cent. Comm., 489 U.S. 

214, 231 n.21 (1989). It forces candidates and party 

 

15 See generally Br. of Amici Curiae the National Republican 

Senatorial Committee and National Republican Congressional 

Committee (discussing the different functions served by the 

national party committees and the additional constraints that 

aggregate limits place on a donor’s ability to support the 

national party committees). 
31

committees to turn from the “major struggle[]” of 

ideas with their opponents to “intraparty feuds” over 

contributor funds subject to aggregate limits, Storer, 

415 U.S. at 735, and interferes with the ability of 

political parties, their candidates, and members to 

associate together “for the advancement of common 

political goals and ideas,” Timmons v. Twin Cities 

Area New Party, 520 U.S. 351, 357 (1997).

16

C. The Government Bears a Particularly 

Heavy Burden in Justifying this 

Substantial Restriction on Core First 

Amendment Rights. 

Precisely because aggregate contribution limits 

infringe so substantially on First Amendment rights, 

the government bears a particularly heavy burden in 

attempting to justify them. “[W]hen the First 

Amendment is involved, [this Court’s] standard of 

review is ‘rigorous.’” NCPAC, 470 U.S. at 501

(quoting Buckley, 424 U.S. at 29). Several Justices of 

this Court have explained that, because the burden

that contribution limits impose on First Amendment 

activity is not meaningfully distinct from the burden 

that expenditure limits impose, contribution limits 

 

16 Compelling individuals to pick and choose among various 

state parties and congressional candidates when making 

contribution decisions also raises serious federalism concerns. 

Contributing to a candidate in one state limits a donor’s ability 

to contribute equally to a candidate in an entirely unrelated 

election in a different state. The Constitution suggests that 

congressional races in each state are independent of each other, 

U.S. Const. art. I, § 2, cl. 1, 4, which calls into question the 

legitimacy of allowing a person’s support for candidates in one 

state to impact the extent to which he may support candidates 

in others. 
32

should not survive unless they satisfy the strictest 

scrutiny. See, e.g., Randall, 548 U.S.at 265 

(Kennedy, J., concurring); id. at 265-67 (Thomas, J., 

concurring); Colorado I, 518 U.S. at 638 (Thomas, J., 

concurring, joined by Rehnquist, C.J., and Scalia, J.) 

(“A contribution is simply an indirect expenditure; 

though contributions and expenditures may thus 

differ in form, they do not differ in substance.”). 

Nonetheless, this Court’s cases “have “subjected 

strictures on campaign-related speech that [the 

Court] ha[s] found less onerous to a lower level of 

scrutiny,” Bennett, 131 S. Ct. at 2817, under which 

the government bears the burden of proving that the 

restriction is “closely drawn” to further a “sufficiently 

important interest” and “avoid unnecessary 

abridgement of” First Amendment rights. Buckley, 

424 U.S. at 25; accord Shrink Missouri, 528 U.S. at 

387-88. Even that standard remains an “exacting” 

one, Citizens Against Rent Cont., 454 U.S. at 298, and 

entails the “closest scrutiny,” Right to Work, 459 U.S. 

at 206-07.

To the extent the Court is inclined to reconsider 

whether such gradations in the government’s burden 

are necessary or appropriate in the campaign finance 

context, McCutcheon agrees that contribution limits, 

like all other burdens on First Amendment rights, 

should be subject to strict scrutiny.17 See generally 

Brief of Amicus Curiae Senator Mitch McConnell.

 

17 Because no reliance interest would be meaningfully 

frustrated by subjecting contribution limits to strict scrutiny, 

see Citizens United v. FEC, 558 U.S. 310, 365 (2010), this Court 

should not feel bound to continue abiding by Buckley’s 

unsustainable dichotomy between contributions and 
33

But whether this Court chooses to characterize 

its standard of review as “strict,” “exacting,” “close,” 

or “rigorous,” the key point in this case is that 

aggregate contribution limits effectively impose a 

“substantial burden” and “penalty” on an individual 

who wishes to “robustly exercise[] [her] First 

Amendment right[s]” by supporting too many 

candidates or political committees. Davis, 554 U.S. 

at 738-40. That penalty is distinct from and far more 

pernicious than the burden that base contribution 

limits impose, and the government therefore cannot 

justify that penalty simply by pointing to the same 

arguments this Court has found sufficient to support 

base contribution limits. 

In other words, the government cannot meet its 

heavy burden by insisting that contribution limits in 

general serve important anti-corruption interests; 

rather the government must demonstrate that it has 

an important, constitutionally valid interest in 

limiting the total amount of money that a person 

contributes to all candidates, political party 

committees, or PACs in an election. If the 

government fails to prove that Congress sufficiently 

tailored BCRA’s aggregate contribution limits to 

serve such an important and legitimate interest, then 

those limits are unconstitutional. See, e.g., Randall, 

548 U.S. at 247-48 (invalidating Vermont’s limits on 

contributions to candidates because they “work[ed] 

 

expenditures. Moreover, stare decisis is at its nadir with 

constitutional rulings because the political branches cannot 

overrule them. See Wisconsin Right to Life, Inc., 551 U.S. at

500 (Scalia, J., concurring) (“This Court has not hesitated to 

overrule decisions offensive to the First Amendment”).
34

more harm to protected First Amendment interests 

than their anticorruption objectives could justify”);

Citizens Against Rent Cont., 454 U.S. at 300 

(invaliding limits on contributions to committees that 

supported or opposed ballot measures).

II. BCRA’S AGGREGATE CONTRIBUTION 

LIMITS DO NOT FURTHER ANY 

CONSTITUTIONALLY PERMISSIBLE 

GOVERNMENT INTEREST. 

BCRA’s aggregate contribution limits are 

unconstitutional because they do not further a 

sufficiently important government interest. The only 

interests that this Court has recognized as 

sufficiently important to burden First Amendment 

rights in the campaign finance context are avoiding 

corruption and the appearance of corruption. By its 

very nature, a contribution to a candidate, political 

party committee, or PAC that is within the legal base 

limit—that is, a contribution below the threshold at 

which Congress determined that a cognizable risk of 

corruption arises—does not raise the specter of 

corruption. The fact that an individual might choose 

to make many such innocuous contributions does not 

render any of them any more troubling or likely to 

corrupt its recipient. So long as Congress imposes 

base limits on how much an individual may 

contribute to each candidate, political party

committee, or PAC, it has no distinct interest in 

limiting how many candidates, parties, or PACs a 

person contributes to within those base limits. 

If aggregate limits are to be justified, then, the 

government must demonstrate that they are a 

sufficiently tailored means of preventing 
35

circumvention of anti-corruption measures. The 

Buckley Court upheld FECA’s aggregate contribution 

ceiling based on such a rationale, but only because 

FECA did not limit the amount an individual could 

contribute to a political party committee or PAC. 

FECA’s aggregate contribution ceiling, in essence, 

served as a substitute for those missing base limits. 

The current campaign-finance scheme, in contrast, 

contains not only an intricate, multi-layered web of 

base contribution limits, but numerous other 

provisions that eliminate entirely the circumvention 

problem Buckley identified. 

Recognizing that it can no longer rely on 

Buckley’s rationale, the government hypothesizes

new and far-fetched circumvention scenarios that 

even the district court conceded were unlikely. The 

government has failed to introduce any evidence, or 

otherwise establish, that those hypothetical problems 

exist, or that BCRA’s aggregate limits actually target 

them. Accordingly, the government has failed to 

prove that BCRA’s aggregate limits serve any 

interest sufficiently important to justify the onerous 

burden they impose on First Amendment rights; 

indeed, its effort to satisfy its demanding burden 

never even gets off the ground. 

A. Aggregate Contribution Limits Do Not 

Directly Prevent Corruption or the 

Appearance of Corruption.

1. This Court has identified only two closely 

related interests that are sufficiently important to 

abridge the First Amendment rights of individuals, 

candidates, and political parties through contribution 

limits: avoiding corruption and the appearance of 
36

corruption. Citizens United, 558 U.S. at 359; Davis, 

554 U.S. at 741; NCPAC, 470 U.S. at 496-97

(“[P]reventing corruption or the appearance of 

corruption are the only legitimate and compelling 

government interests thus far identified for 

restricting campaign finances.”); Buckley, 424 U.S. at 

26-28. 

Because public officials in a democracy must be 

responsive to the preferences and demands of the 

electorate, including their supporters, see McConnell, 

540 U.S. at 297 (Kennedy, J., concurring in part and 

dissenting in part) (“Democracy is premised on 

responsiveness.”), this Court has construed the 

government’s interest in preventing corruption quite 

narrowly. Despite broad language in some earlier 

opinions, see, e.g., Shrink Missouri, 528 U.S. at 388-

89; FEC v. Colorado Republican Federal Election 

Comm. (“Colorado II”), 533 U.S. 431, 440-41 (2001), 

the Court has clarified that the government’s interest 

in preventing the actuality and appearance of 

corruption is “limited to quid pro quo corruption.” 

Citizens United, 558 U.S. at 359; see also NCPAC, 

470 U.S. at 497 (the government may limit 

contributions and their equivalents only to prevent 

“financial quid pro quo: dollars for political favors”); 

FEC v. Wisconsin Right to Life, 551 U.S. 449, 478-79 

(2006) (plurality op.); Buckley, 424 U.S. at 26-28. 

The fact that contributors “may have influence over 

or access to elected officials does not mean that those 

officials are corrupt.” Citizens United, 558 U.S. at 

359; see also McConnell, 540 U.S. at 297 (Kennedy, 

J.) (“It is in the nature of an elected representative to 

favor certain policies, and, by necessary corollary, to 

favor the voters and contributors who support those 
37

policies.”). Similarly, the government may not 

impede First Amendment activities simply because a 

candidate might be grateful for them. Citizens 

United, 558 U.S. at 360 (“Ingratiation and access ... 

are not corruption.”).

2. Congress does not have a distinct interest in 

limiting the number of candidates, political party 

committees, or PACs to which an individual may 

contribute. This Court has made clear that, if a 

particular type of contribution or expenditure does 

not create a risk of quid pro quo corruption, then 

Congress has no interest in limiting how often a 

person engages in it. NCPAC, 470 U.S. at 497 

(invalidating limit on independent expenditures by 

political party committees because there is “no 

tendency in such expenditures ... to corrupt or give

the appearance of corruption”); Citizens Against Rent 

Cont., 454 U.S. at 297-98 (invalidating limit on 

amount an individual could contribute to a 

committee supporting or opposing a ballot measure

because such contributions did not create a risk of 

corruption). 

Under current law, Congress has determined 

that contributions of $2,600 or less per election to a 

candidate do not create a cognizable risk of 

corruption. 2 U.S.C. § 441a(a)(1)(A); see Davis, 554 

U.S. at 742-43 (treating a contribution limit as 

embodying “Congress’ judgment” that contributions 

up to that amount “do not unduly imperil 

anticorruption interests”). Regardless of whether a

contributor makes individually permissible and 

legally innocuous contributions to one candidate, 10 

candidates, or 100 candidates, the likelihood that any 
38

such contribution involves quid pro quo corruption, 

or its appearance, remains unchanged: so low that 

Congress saw no need to address it. Thus, the 

government has no distinct anti-corruption interest 

in limiting the frequency or extent to which an 

individual may make individually innocuous 

contributions to different candidates. See, e.g.,

Colorado I, 518 U.S. at 617 (invalidating limit on 

independent expenditures by political parties 

because such expenditures did not create a “risk of 

corruption”); Davis, 554 U.S. at 741 (holding that, 

since BCRA’s Millionaire’s Amendment allowed nonself-financed candidates to accept contributions up to 

$6,900, government could not argue that allowing 

self-financed candidates to accept contributions in 

that amount “serv[ed] anticorruption goals”).

The same is true with regard to political party 

committees and PACs. Congress already has 

established base limits which prohibit contributions 

of an amount that may implicate the appearance or 

actuality or corruption. 2 U.S.C. § 441a(a)(1)(C)-(D). 

The fact that an individual makes contributions 

below that amount to multiple party committees or 

PACs does not render any one of those contributions 

any more likely to be (or appear) corrupt. Therefore, 

aggregate contribution limits do not directly prevent 

the actuality or appearance of corruption. 

3. Nor may the government defend aggregate 

contribution limits on egalitarian grounds. Congress’ 

interest in preventing corruption and its appearance 

does not allow it to “restrict the speech of some 

elements of our society in order to enhance the 

relative voice of others.” Bennett, 131 S. Ct. at 2821; 
39

see also Citizens United, 558 U.S. at 355 (“[P]olitical 

speech cannot be limited based on a speaker’s 

wealth.”); Mass. Citizens for Life, 479 U.S. at 257

(“Political ‘free trade’ does not necessarily require 

that all who participate in the political marketplace 

do so with exactly equal resources.”). This Court has 

flatly rejected the notion that Congress may seek to 

protect some “contributors ... from the possibility 

that others will make larger contributions.” Citizens 

Against Rent Cont., 454 U.S. at 295; see also Davis, 

554 U.S. at 740 n.7 (“[L]eveling electoral 

opportunities ... cannot justify the infringement of 

First Amendment interests.”).18 Thus, aggregate 

contribution limits may not be upheld as a means of 

limiting disparities in the extent to which people of 

different economic backgrounds are able to 

participate in the political process and exercise their 

First Amendment rights. 

B. BCRA’s Aggregate Contribution Limits 

Do Not Prevent Circumvention of AntiCorruption Measures. 

BCRA’s aggregate contribution limits fare no 

better as an indirect, prophylactic means of 

combating corruption by preventing contributors 

from circumventing base limits on contributions to 

 

18 In Austin v. Michigan State Chamber of Commerce, 494 

U.S. 652, 659-60 (1990), this Court held that a state could 

prohibit corporations from making independent expenditures 

with their own funds in order to prevent “the corrosive and 

distorting effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form.” Citizens 

United expressly repudiated that holding, recognizing “Austin’s 

antidistortion rationale” as an “aberration.” 558 U.S. at 350. 
40

candidates. The Buckley Court approved FECA’s 

aggregate contribution ceiling because it prohibited 

otherwise legal methods through which contributors 

easily could evade FECA’s base candidate 

contribution limits. That reasoning cannot sustain 

BCRA’s aggregate limits, however, because 

numerous other provisions of current campaign 

finance law already prohibit the various ways in 

which a contributor might attempt to circumvent

base limits. 

1. In the Years Since Buckley, 

Congress Has Eliminated the Need 

for Aggregate Contribution Limits 

as Anti-Circumvention Measures.

This Court has considered an aggregate 

contribution limit exactly once—in a single 

paragraph of Buckley that noted that the issue “ha[d] 

not been separately addressed at length by the 

parties.” Buckley, 424 U.S. at 38. The Court 

recognized that FECA’s aggregate contribution 

ceiling “impose[d] an ultimate restriction upon the 

number of candidates and committees with which an 

individual may associate himself by means of 

financial support.” Id. It nevertheless upheld the 

ceiling as “no more than a corollary of the basic 

individual contribution limitation that we have found 

to be constitutionally valid.” Id. The Court 

explained that FECA’s ceiling served a clear anticircumvention purpose: “prevent[ing] 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 
41

contribute to that candidate, or huge contributions to 

the candidate’s political party.” Id. Absent FECA’s 

ceiling, such transactions would have been legally 

permissible because FECA did not otherwise impose 

any direct limit on how much a person could 

contribute to a political party committee or PAC. 

FECA’s aggregate ceiling therefore acted, in 

effect, as a surrogate base limit on contributions to 

PACs and political party committees. Buckley upheld 

the ceiling only as a mechanism for preventing a 

person from giving unlimited contributions to an 

unlimited number of political party committees or 

PACs, thereby potentially allowing her to circumvent 

limits on how much she could contribute to each

candidate. Congress has since eliminated the

problem identified in Buckley and, with it, any 

plausible justification for aggregate limits as an anticircumvention measure. 

Unlike pre-Buckley FECA, BCRA expressly 

limits the amount of money an individual may 

contribute not only to each candidate, but to each 

local, state, and national political party committee 

and PAC. 2 U.S.C. § 441a(a)(1). Accordingly, an 

individual may not make the kind of “massive,” 

“huge,” unlimited contributions to political party 

committees or PACs that Buckley contemplated. 

Buckley, 424 U.S. at 38. Aggregate limits can no 

longer be considered an indirect limit on 

contributions to political party committees and PACs

because direct limits on contributions to such entities

now exist. 

These new restrictions on contributions to

political party committees and PACs are bolstered by 
42

additional limits on contributions by political party 

committees and PACs. In addition to retaining 

FECA’s base limit of $5,000 for contributions from a 

national, state, or local party or multicandidate PAC 

to a candidate,19 BCRA prohibits those entities from 

contributing more than $5,000 annually to any other 

PAC. 2 U.S.C. § 441a(a)(2)(A), (C). A multicandidate 

PAC is also prohibited from contributing more than 

$5,000 to a state or local party committee, or $15,000 

to a national political party committee. Id. 

§ 441a(a)(2)(B), (C). These provisions further prevent 

individuals from using PACs or political party 

committees to funnel large amounts of money to

candidates. 

Congress also specifically has addressed the 

problem of using multiple PACs to circumvent base 

contribution limits. All contributions to political 

committees that are established, financed, 

maintained, or controlled by the same corporation, 

union, or other person—including an entity’s parents, 

subsidiaries, branches, divisions, departments, or 

local units—are now “considered to have been made 

by a single political committee.” Id. § 441a(a)(5). A

person therefore cannot evade base contribution 

limits by providing money to a series of affiliated 

PACs that will, in turn, contribute to a particular 

candidate. 

Likewise, a contributor may not evade base 

limits by channeling contributions through a PAC or 

political party committee to a specific candidate. All 

 

19 See also supra notes 6, 8 (identifying other restrictions on 

candidate contributions and coordinated expenditures by state 

and national political party committees). 
43

contributions that a person makes “either directly or 

indirectly, on behalf of a particular candidate, 

including contributions which are in any way 

earmarked or otherwise directed through an 

intermediary or conduit to such candidate,” are 

“treated as contributions from such person to such 

candidate.” Id. § 441a(a)(8). The intermediary is 

required to report to the FEC the contributor and the 

intended recipient of the contribution. Id.

20 These

provisions collectively eliminate the circumvention 

problem identified in Buckley.

The Buckley Court did not approve FECA’s 

aggregate contribution ceiling as a mechanism for 

preventing a person from giving too many small 

contributions to too many different candidates. Nor 

did it uphold the ceiling as a secondary measure to 

further regulate already illegal avenues of 

circumventing contribution limits, or to reinforce 

other existing prohibitions. Rather, this Court 

upheld FECA’s ceiling as a second-best surrogate for 

base limits on contributions to political party 

committees and PACs, which FECA lacked. 

Accordingly, BCRA’s aggregate limits cannot 

plausibly be said to serve the same anticircumvention rationale as FECA’s aggregate 

contribution ceiling—let alone do so in a manner 

“closely drawn” to “avoid unnecessary abridgement 

of” First Amendment rights. Buckley, 424 U.S. at 25.

 

20 In addition, federal law prohibits contributors from making 

contributions in the name of another person or with the funds of 

another person. 2 U.S.C. § 441f. 
44

2. The Government’s Efforts to 

Portray BCRA’s Aggregate Limits as 

Anti-Circumvention Measures Rest 

on Pure Speculation with No 

Factual Support.

Because BCRA’s aggregate contribution limits 

cannot be sustained under the same rationale as 

FECA’s contribution ceiling, the government bore the 

burden of providing an independent and factually 

supported theory as to how these limits operate as a 

closely drawn means of preventing circumvention of 

base contribution limits, without unnecessarily 

abridging First Amendment rights. The government 

has not come close to satisfying that burden. 

The government contended, and the district 

court agreed, that aggregate contribution limits are 

constitutional because they might serve a 

hypothetical anti-circumvention purpose. According 

to the district court, it is at least conceivable that a 

joint fundraising committee could be formed 

“comprising a party’s presidential candidate, the 

party’s national party committee, and most of the 

party’s state committees.” JS.App.12a. And it is 

conceivable, in this hypothetical scenario, that a 

person “might” give a half-a-million-dollar check to 

this hypothetical joint fundraising committee, that 

the various committees comprising this joint 

committee “might” decide to transfer all the funds to 

a single committee, that this committee in turn 

“might” use the money for coordinated expenditures 

with a candidate, and that this candidate might, in 

turn, feel “[g]ratitude” toward the original 

contributor as a result. JS.App.12a.
45

If that daisy chain of events sounds far-fetched, 

that is because it is. Neither the government nor the 

district court cited a single shred of evidence to 

support it. To the contrary, the district court readily 

conceded that these events were “unlikely” to occur, 

yet nonetheless upheld the aggregate limits because 

the court could “imagine” such an implausible 

scenario. JS.App.12a. The court did not even 

address the likelihood that many steps in its analysis 

are illegal under current law. See 2 U.S.C. 

§ 441a(a)(2)(A), (d)(1)-(3) (imposing limits on 

contributions and coordinated expenditures by 

political committees to candidates); id. § 441a(a)(8) 

(imposing restrictions on earmarking); id. § 441f

(prohibiting contributions with the funds of another).

This Court has “never accepted mere conjecture 

as adequate to carry a First Amendment burden,” 

Shrink Missouri, 528 U.S. at 391, and it should not 

start doing so now. Cf. Turner Broadcasting System, 

Inc. v. FCC, 512 U.S. 622, 664 (1994) (“When the 

Government defends a regulation on speech as a 

means to ... prevent anticipated harms, it must do 

more than simply posit the existence of the disease 

sought to be cured.”) (internal citation and quotation 

marks omitted). To carry its burden, the government 

must provide actual evidence that the First 

Amendment activity it seeks to prohibit tends to 

cause quid pro quo corruption or the appearance of 

such corruption, and that the restrictions at issue 

will help prevent it. Critically, a burden on First 

Amendment rights cannot rest on “a hypothetical 

possibility and nothing more.” NCPAC, 470 U.S. at 

498 (invalidating limit on independent expenditures 

by PACs where government failed to introduce any 
46

evidence suggesting that “an exchange of political 

favors for uncoordinated expenditures” was likely to 

occur). 

“The quantum of empirical evidence needed to

satisfy heightened judicial scrutiny of legislative 

judgments will vary up or down with the novelty and 

plausibility of the justification raised.” Shrink 

Missouri, 528 U.S. at 391. The Court has excused

the government from presenting actual evidence to 

meet this burden only where it “has been long 

recognized,” and “there is little reason to doubt,” that 

the targeted act involves “the evil of potential 

corruption.” NCPAC, 470 U.S. at 500; Shrink 

Missouri, 528 U.S. at 395. 

There is nothing remotely obvious about how 

contributing to multiple candidates running in 

entirely separate elections, or to multiple state 

political parties (or PACs) across the country, is 

likely to lead to quid pro quo corruption or even the 

appearance of such corruption when base 

contribution limits for all of those entities already 

exist. Indeed, the much more obvious inference is 

that Congress’ carefully calibrated base contribution 

limits eliminate any cognizable corruption risk. 

Speculation and guess work cannot suffice in this 

context. If the government wishes to demonstrate 

that layering aggregate limits on top of base limits is 

a closely drawn means of preventing circumvention 

of those base limits, it must provide some concrete 

evidence to support that unlikely contention and 

cannot rest—as the district court did—upon a mere 

“hypothetical possibility.” NCPAC, 470 U.S. at 498.
47

The government’s failure to meet its demanding 

burden is confirmed by other cases in which this 

Court has rejected sheer speculation as a sufficient 

basis for limiting core First Amendment rights. For 

instance, in First National Bank of Boston v. Bellotti, 

the Court refused to allow a state to restrict 

corporate political speech based on nothing more 

than “the assumption that such participation would 

exert undue influence” over the electorate. 435 U.S. 

765, 789 (1978) (emphasis added). And in Citizens 

Against Rent Control, the Court struck down a 

contribution limit on the amount a person could give 

to committees supporting or opposing ballot 

measures where “the record ... [did] not support the 

[lower court’s] conclusion that [the limit was] needed 

to preserve voters’ confidence in the ballot measure

process.” 454 U.S. at 299; see also id. at 302

(Marshall, J., concurring) (“I find no such evidentiary 

support in this record.”); id. at 303 (Blackmun, J.,

and O’Connor, J., concurring) (“The city’s evidentiary 

support in this case is equally sparse.”). 

Likewise, in Colorado II, the Court subjected 

FECA’s limit on coordinated expenditures by political 

party committees to “the scrutiny appropriate for a 

contribution limit,” because FECA treated them as 

the legal equivalent of campaign contributions. 533 

U.S. at 46. Applying exacting scrutiny, the Court 

scoured the evidentiary record to determine whether 

“adequate evidentiary grounds exist[ed] to sustain 

the limit” and reviewed whether the government 

adequately had proven that there existed “a serious 

threat of abuse from unlimited coordinated party 

spending as the Government contend[ed].” Id. at 

457; see also Citizens United, 558 U.S. at 360 
48

(emphasizing the “scant evidence that independent 

expenditures” by corporations “even ingratiate” the 

entities making them to the candidates they are 

intended to assist). As these decisions underscore, 

when the government seeks to burden core First 

Amendment rights, it must start by demonstrating

that the problem it purports to target actually exists. 

The government simply did not do that in this case. 

3. The Aggregate Contribution Limits 

Do Not Prevent Any Cognizable 

Risk or Appearance of Corruption.

Even assuming the chain of events the 

government proposed and the district court accepted 

were more than a mere “hypothetical possibility,” 

NCPAC, 470 U.S. at 98, such occurrences would not 

create a sufficiently cognizable risk of the appearance 

or actuality of corruption to justify burdening 

fundamental First Amendment rights. 

1. The district court’s hypothetical scenario does 

not create a constitutionally cognizable risk of actual 

or apparent corruption under this Court’s precedents. 

According to the district court, a contributor might 

provide funds to a candidate or political party 

committee, which in turn might contribute those 

funds to another candidate to whom the original 

contributor already had given the legal maximum of 

$2,600. JS.App.12a. The court opined that this 

would allow that contributor to circumvent BCRA’s 

base candidate contribution limit and obtain the 

“gratitude” of the ultimate recipient of the funds, 

raising the specter of some implicit, undefined quid 

pro quo. JS.App.12a.
49

This logic fails, however, because once the 

original candidate or political party committee 

receives a contributor’s funds, that contributor loses 

all control over their disposition. Indeed, if the 

contributor did attempt to “earmark” the 

contribution for some particular recipient, then the 

“intermediary or conduit” would have to report it to 

the FEC as a direct contribution from the contributor 

to that ultimate recipient, 2 U.S.C. § 441a(a)(8), and 

the contributor would violate the base candidate 

contribution limit, id. § 441a(a)(1)(A). In the absence 

of such earmarking, however, a contributor has no 

control over whether a candidate, party, or PAC to 

whom she provides funds will contribute them to a 

particular candidate. 

The absence of “prearrangement and 

coordination” between a contributor and a candidate 

“alleviates the danger” of actual and apparent 

corruption, and therefore eliminates any 

constitutionally legitimate basis for burdening First 

Amendment rights. Buckley, 424 U.S. at 47. This 

Court made that point in NCPAC, when it 

invalidated limits on the amount of independent 

expenditures that PACs could make in support of 

presidential candidates. Discussing the risk of 

corruption that such expenditures posed, the Court 

stated, “[i]t is of course hypothetically possible ... 

that candidates may take notice of and reward those 

responsible for PAC expenditures by giving official 

favors to the latter in exchange for the supporting 

messages.” NCPAC, 470 U.S. at 498. But because 

“the absence of prearrangement and coordination 

undermines the value of the expenditure to the 

candidate,” the Court concluded that such 
50

circumstances “alleviate[] the danger that 

expenditures will be given as a quid pro quo for 

improper commitments from the candidate.” Id.; see 

also Colorado I, 518 U.S. at 617-18 (“[T]he 

constitutionally significant fact ... is the lack of 

coordination between the candidate and the source of 

the expenditure. This fact prevents us from 

assuming ... that a limitation on political parties’ 

independent expenditures is necessary to combat a 

substantial danger of corruption.”). 

Likewise, one certainly can speculate—as the 

district court did—that if someone contributed money 

to a candidate, political party committee, or PAC, 

and that entity re-contributed the money to a 

different candidate, the ultimate recipient “might 

take notice of and reward” the original contributor. 

NCPAC, 470 U.S. at 98. But earmarking 

prohibitions prevent that kind of prearrangement 

and coordination concerning the disposition of the 

original contribution. 2 U.S.C. § 441a(a)(8). That 

lack of prearrangement and coordination 

“undermines the value ... to the candidate” of the 

original contribution and “alleviates the danger” that 

it “will be given as a quid pro quo for improper 

commitments from the candidate.” NCPAC, 470 U.S. 

at 98; see also Colorado I, 518 U.S. at 617. Thus, as a 

matter of law, the types of otherwise legal 

transactions aggregate contribution limits might 

target do not entail a risk of actual or apparent 

corruption. 

2. Furthermore, as a practical matter, it is highly 

unlikely that a candidate will receive a substantial 

contribution that can be traced back through another 
51

candidate, political party committee, or PAC to a 

particular contributor. Many candidates, political 

party committees, and PACs receive donations from 

numerous sources. Even if an individual contributes

the legal maximum to a candidate, political party

committee, or PAC, that amount is likely to be only a 

small—potentially even miniscule—fraction of the 

recipient’s overall assets. Consequently, if that 

recipient makes a contribution to another candidate, 

the pro rata share of the contribution that can be 

attributed to any particular contributor is likely to be 

negligible. 

The RNC, for example, raised more than $386 

million during the 2012 presidential election. See 

supra p. 13 & n.13. Even if a donor contributed the 

legal maximum to the RNC ($32,400), and the RNC 

in turn contributed the legal maximum to a 

candidate ($5,000), the pro rata share of that 

contribution for which the candidate could credit the 

original contributor would be less than one 

hundredth of one percent, amounting—quite 

literally—to pocket change. Thus, even under the 

government’s and district court’s reasoning, the 

aggregate limits do not prevent a cognizable risk of 

corruption. 

3. More fundamentally, the government’s basic 

theory of how aggregate limits prevent circumvention 

has no stopping point. The government’s position 

implicitly assumes that contributing $5,200 over the 

course of an election cycle to each of nine candidates 

is not problematic, but giving the same amount to a 

tenth candidate (thereby putting the contributor over 

the aggregate limit) dramatically increases the risk 
52

that those funds will find their way back to one of the 

first nine. There is no reason to assume, however, 

that the likelihood of the tenth candidate giving away 

his hard-earned contributions to one of the first nine 

candidates is any greater than the likelihood of the 

third candidate giving away his contributions to one 

of the first two. In other words, under the 

government’s reasoning, the circumvention problem 

arises any time a person contributes to more than 

one candidate. Accordingly, if this Court adopts the 

government’s theory, then there is no obvious reason 

why Congress could not require contributors to limit 

their contributions to, at most, a single candidate in 

any given election cycle.

It is difficult enough to ascertain the point at 

which a limit on how much someone may contribute 

to a single candidate crosses the line between 

permissibly targeting quid pro quo corruption and 

impermissibly burdening too much First Amendment 

activity. Cf. Randall, 548 U.S. at 248 (recognizing 

“the existence of some lower bound” on base 

contribution limits). But there is no meaningful way 

to determine the point at which an individual has 

contributed an otherwise permissible amount of 

money to too many candidates. 

4. BCRA’s structure itself underscores that the 

government’s anti-circumvention rationale makes no 

sense. BCRA’s base contribution limits allow an 

individual to contribute $2,600 per election to a 

particular candidate, and then contribute additional 

funds to a different candidate, a political party 

committee, or a PAC. 2 U.S.C. § 441a(a)(1). BCRA 

also permits that other candidate, party committee, 
53

or PAC to re-contribute the additional funds to the 

first candidate (subject to earmarking provisions and 

other safeguards), even if the original contributor 

already had reached his base contribution limit for 

the first candidate. Id. § 441a(a)(2).

Rather than reflecting a devious method of 

circumventing base contribution limits, this is an 

intentional, essential part of the system BCRA 

established. Under BCRA, the fact that an 

individual has contributed the legal maximum to a 

particular candidate does not, and was not intended 

to, restrict him from contributing to other candidates, 

PACs, or political party committees that also may 

support or contribute to that candidate. The notion 

that the government has an important interest in 

preventing an individual from doing so is therefore 

misguided at best, and in tension with the structure 

of the law as a whole. 

5. The government’s claim that aggregate 

contribution limits are an important means of 

preventing circumvention of base contribution limits 

is further undermined by the fact that most states 

that limit contributions to candidates have not 

enacted such aggregate limits. Cf. W. Coast Hotel Co. 

v. Parrish, 300 U.S. 379, 399 (1937) (“The adoption of 

similar requirements by many States evidences a 

deepseated conviction both as to the presence of the 

evil and as to the means adapted to check it.”). As of 

2010, of the 38 jurisdictions (including Washington, 

D.C.) that limited contributions to candidates, only 

11 imposed additional aggregate limits on the total 

amount of money that a person could contribute to all 
54

candidates in an election cycle.21 The fact that over 

70% of states that limit contributions to candidates 

concluded that aggregate limits are unnecessary to 

prevent circumvention discredits the notion that the 

government has an important interest in imposing 

such a burden on First Amendment rights.

At bottom, BCRA’s aggregate limits do not 

further any government interest that this Court has 

found legitimate. In truth, they are designed not to 

target corruption or prevent improper circumvention 

of base contribution limits—a feat they are ill-suited 

to achieving—but rather to limit the extent to which 

any particular individual may participate in the 

political process. That kind of equalization interest 

is a patently impermissible basis for burdening core 

First Amendment activity. Bennett, 131 S. Ct. at 

2821; Davis, 554 U.S. at 740 n.10, 741; Mass. Citizens 

 

21 See Ariz. Rev. Stat. Ann. § 16-905(E) (2012);Conn. Gen. 

Stat. § 9-611(c) (2013); D.C. Code § 1-1163.33(b)(1); Me. Rev. 

Stat. Ann. tit. 21-A, § 1015(3) (2013); Md. Ann. Code § 13-226(b) 

(2013); Mass. Gen. Laws ch. 55, § 7A(a)(5) (2013); N.Y. Laws 

[Elec.] § 14-114 (2012); R.I. Gen. Laws § 17-25-10.1(a)(1) (2012); 

Wash. Rev. Code § 42.17A.420 (2012) (applicable only to 

contributions within 21 days of a general election); Wis. Stat. 

§ 11.26(4) (2013); Wyo. Stat. Ann. § 22-25-102 (c)(ii) (2012). 

The following states have enacted base contribution limits 

without aggregate contribution limits: Alaska, Arkansas, 

California, Colorado, Delaware, Florida, Georgia, Hawaii, 

Idaho, Illinois, Kansas, Kentucky, Louisiana, Michigan, 

Minnesota, Montana, Nevada, New Hampshire, New Jersey, 

New Mexico, North Carolina, Ohio, Oklahoma, South Carolina, 

Tennessee, Vermont, and West Virginia. See generally National 

Conference of State Legislatures, State Limits on Contributions 

to Candidates (Jan. 20, 2010), available at

www.ncsl.org/print/legismgt/ limits_candidates.pdf. 
55

for Life, 479 U.S. at 258. Accordingly, BCRA’s 

aggregate limits are unconstitutional. 

III. EVEN ASSUMING THAT AGGREGATE 

CONTRIBUTION LIMITS FURTHER A 

LEGITIMATE INTEREST, THEY ARE NOT 

SUFFICIENTLY TAILORED.

Even assuming that BCRA’s aggregate 

contribution limits further the government’s interest 

in preventing quid pro quo corruption or the 

appearance of such corruption, they still are 

unconstitutional because they are not a “closely 

drawn” means of doing so. Buckley, 424 U.S. at 25. 

As this Court repeatedly has admonished, the 

government may not combat corruption through 

imprecise and overbroad measures that 

“unnecessar[ily] abridg[e]” fundamental First 

Amendment rights. Id.

1. As explained above, see supra Part II.A,

BCRA’s aggregate contribution limits do not target 

corruption directly, but rather are, at best, anticircumvention measures designed to reinforce the 

statute’s other, direct anti-corruption measures. 

Because that kind of prophylactic restriction 

intrinsically sweeps in First Amendment conduct 

that does not BY itself give rise to quid pro quo 

corruption or an appearance of corruption, see 

Wisconsin Right to Life, 551 U.S. at 475 (plurality 

op.), it will survive constitutional scrutiny only if the 

government establishes that the measure is closely 

drawn to target the circumvention of anti-corruption 

laws, Shrink Missouri, 528 U.S. at 387-88; Buckley, 

424 U.S. at 25. 
56

The government cannot satisfy this burden when 

it demonstrates only an “attenuated” relationship 

between the corrupt conduct it constitutionally may 

prevent and the additional conduct it wishes to 

prohibit. Colorado I, 518 U.S. at 616. Nor may the 

government prohibit a broad range of constitutionally 

protected conduct to reach a narrow sliver of conduct 

that raises the specter of quid pro quo corruption. 

See, e.g., Citizens United, 558 U.S. at 362 (holding 

that government may not bar all corporations from 

engaging in independent expenditures as a means of 

“preventing foreign individuals or associations from 

influencing our Nation’s political process”); NCPAC, 

470 U.S. at 498 (invaliding prohibition on 

independent expenditures by PACs because, “[e]ven 

were we to determine that the large pooling of 

financial resources [by PACs] did pose a potential for 

corruption or the appearance of corruption,” the 

challenged statute was “not limited to multimillion 

dollar war chests,” but rather “appl[ied] equally to 

informal discussion groups that solicit neighborhood 

contributions”). 

For example, in Bennett, the state attempted to 

defend the penalty that its laws imposed on privately 

financed candidates by arguing that it would prevent

corruption by inducing candidates to accept public 

financing. 131 S. Ct. at 2827. The Court rejected 

that rationale as far too attenuated, holding, “the fact 

that burdening constitutionally protected speech 

might indirectly serve the State’s anticorruption 

interest, by encouraging candidates to take public 

financing, does not establish the constitutionality of 

the matching funds provision.” Id.
57

2. Aggregate contribution limits prohibit far 

more protected First Amendment activity than the 

small sliver that conceivably might raise legitimate 

circumvention concerns. The vast majority of 

contributions to candidates or parties in excess of 

BCRA’s aggregate contribution limits are likely to be 

retained by their recipients, rather than recontributed, directly or indirectly, to another 

candidate. For example, during the 2012 election 

cycle, the RNC contributed only 0.07% of its funds to 

candidates, and dedicated only 5.8% to coordinated 

expenditures. See supra p. 13 & n.13. Those figures 

were even lower during the previous election cycle. 

Id. A contribution that complies with BCRA’s base 

limits and is retained and ultimately used by its 

initial recipient—rather than transferred or recontributed elsewhere—raises neither concerns about 

direct corruption nor a cognizable risk of 

circumvention of base contribution limits. 

Moreover, because most candidates, parties, and 

PACs receive contributions from numerous sources, if 

one of those entities does make a contribution to 

another candidate, it is highly unlikely that any 

portion of that money could or would be ascribed to 

the original contributor. And even if the ultimate 

recipient were aware that certain contributors had 

contributed to the “intermediary” candidate or party, 

the pro rata portion of the funds for which each 

contributor could be deemed responsible is likely to 

be so small—potentially even miniscule—that there 

is no cognizable risk of quid pro quo corruption or the 

appearance thereof. Finally, even in the rare 

instance where a substantial amount of money could 

be traced back to a particular contributor, “few” such 
58

contributions are likely to actually “involve [a] quid 

pro quo arrangement[].” Citizens United, 558 U.S. at 

357. 

BCRA’s aggregate limits therefore impose a 

sweeping prohibition on innocuous, constitutionally 

protected conduct as a vastly overbroad means of 

deterring a tiny proportion of potentially improper 

transactions. See id. at 362; NCPAC, 470 U.S. at

498. Especially given BCRA’s veritable laundry list 

of much more direct anti-corruption and anticircumvention measures—including base limits on 

contributions from individuals to candidates, political 

party committees, and PACs; limits on contributions 

from political party committees, PACs, and 

candidates to other candidates; restrictions on the 

proliferation of multiple PACs by a single entity; 

strict earmarking rules; prohibition on contributions

made in the name, or with the funds, of another; and 

exhaustive disclosure requirements (to say nothing of 

federal anti-bribery laws)—its aggregate contribution 

limits are not remotely closely tailored to achieve any 

important government interest. Cf. Wisconsin Right 

to Life, 551 U.S. at 479 (plurality opinion) (“a 

prophylaxis-upon-prophylaxis approach to regulating 

expression is not consistent with strict scrutiny”). 

3. Aggregate limits also are aimed at the wrong 

activity. There is nothing suspicious or troubling 

about making a contribution to a candidate, political 

party, or PAC within BCRA’s base contribution 

limits; indeed, BCRA expressly permits such 

contributions. See 2 U.S.C. § 441a(a)(1). Rather, the 

government’s professed anti-circumvention concerns 

arise only from the possibility that candidates,
59

political party committees, or PACs will shuffle

around that contribution and ultimately channel it to 

an “improper” recipient. Aggregate contribution 

limits are a poorly tailored solution to that problem

because, rather than targeting the putatively 

improper conduct by the recipient candidates, 

political party committees, and PACs, they instead 

restrict the contributor’s ability to make otherwise 

legal contributions. 

Massachusetts Citizens for Life underscores the 

impropriety of using aggregate limits to address such 

a highly attenuated anti-circumvention concern. 

There, this Court struck down a law that prohibited 

non-profit corporations formed primarily for issue 

advocacy from making independent expenditures in 

federal elections. The government argued that this

prohibition prevented such groups from engaging in 

“massive undisclosed political spending” and serving 

as “conduits for undisclosed spending by business 

corporations and unions.” 479 U.S. at 261 (emphasis 

added). But the Court concluded that the provision 

was impermissibly overbroad, emphasizing that 

“[t]he state interest in disclosure ... can be met in a 

manner less restrictive,” such as by requiring those 

entities to disclose their expenditures or the 

identities of anyone who contributed to them for the 

express purpose of influencing elections. Id. at 261-

62; see also Citizens Against Rent Cont., 454 U.S. at 

299-300 (invaliding limit on individuals’ 

contributions to political committees that supported 

or opposed ballot measures, because the 

municipality’s interest in allowing voters to 

“identify[] the sources of support for and opposition to 

[those] measures ... will be adequately protected” by 
60

less intrusive disclosure requirements and a 

prohibition on anonymous contributions).

Just as undisclosed spending can be much more 

directly addressed by disclosure requirements, 

potential perceived problems with financial transfers 

and contributions among candidates, political party 

committees, and PACs can be much more directly 

addressed by measures that target those transfers 

themselves and impose less of a burden on First 

Amendment rights. Most basically, Congress could 

address any concern relating to joint fundraising 

committees—which is the only concern the district 

court expressly identified as a basis for aggregate 

limits, JS.App.10a-11a—by more closely regulating 

joint fundraising committees themselves. 

Ameliorating perceived problems with joint 

fundraising committees by imposing a flat aggregate 

limit on contributions an individual may make to any 

candidates, political party committees, and PACs—

regardless of whether they even participate in a joint 

fundraising committee—cannot plausibly be deemed 

a “closely tailored” solution to this hypothetical 

problem. Cf. Citizens United, 558 U.S. at 362 (ban on 

all independent expenditures by corporations was not 

a closely tailored means of preventing contributions 

by foreign corporations); NCPAC, 470 U.S. at 498 

(prohibition on independent expenditures by all 

PACs, regardless of their wealth, was not a closely 

tailored means of addressing potential corruption 

that may arise from “multimillion dollar war chests”).

If Congress is concerned more broadly about the 

possibility of political party committees acting as 

conduits to evade base contribution limits, there are 
61

several obvious and much more narrowly tailored 

solutions it may consider. For example, the most 

direct remedy would be to limit financial transfers 

among political party committees, or amend 2 U.S.C. 

§ 441a(a)(4) to treat such interparty transfers as 

contributions for some or all purposes, including base 

contribution limits. Alternatively, Congress could 

address anti-circumvention concerns without 

unnecessarily infringing on contributors’ rights by 

replacing the aggregate limits with an aggregate 

contribution threshold for individuals, and requiring 

entities that receive funds contributed in excess of 

the contributor’s aggregate threshold to deposit them 

into segregated, non-transferrable accounts.

In short, aggregate limits on contributions to all 

candidates, political party committees, and PACs are 

a blunderbuss and highly attenuated method of 

furthering any legitimate anti-circumvention goal the 

government might have. They have no place in a 

campaign finance system that is already chock-full of 

much more direct anti-corruption and anticircumvention measures, and are therefore nothing 

more than impermissible “prophylaxis upon 

prophylaxis.” Wisconsin Right to Life, 551 U.S. at 

479 (plurality op.). If Congress wishes to address the 

hypothetical problem the government and district 

court have posited, it must do so through measures 

that target that precise evil and do not unnecessarily 

intrude on fundamental First Amendment rights. 

Because BCRA’s aggregate contribution limits do 

precisely the opposite, they impermissibly burden 

protected First Amendment activity and are 

unconstitutional. 
62

CONCLUSION

For these reasons, the Court should reverse the 

decision below and remand for entry of a permanent 

injunction.

Respectfully submitted,

Dan Backer

Paul Henry Jossey

DB CAPITOL 

STRATEGIES, PLLC

Suite 2109

209 Pennsylvania Ave. SE 

Washington, DC 20003

Jerad Wayne Najvar

NAJVAR LAW FIRM

1 Greenway Plaza, Ste. 100 

Houston, TX 77046

Michael T. Morley

Counsel of Record

223 Pawnee Rd.

Cranford, NJ 07016

(860) 778-3883

michaelmorleyesq

@hotmail.com

Counsel for Plaintiff-Appellant Shaun McCutcheon

May 6, 2013
STATUTORY APPENDIX
i

TABLE OF CONTENTS

U.S. Const. amend. I .................................................1a

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

2 U.S.C. § 441f ...........................................................8a

18 U.S.C. § 608 (1970 ed. Supp. IV)..........................9a

11 C.F.R. § 100.5(g) .................................................19a

11 C.F.R. § 110.4(b) .................................................23a

11 C.F.R. § 110.5......................................................24a

11 C.F.R. § 110.6......................................................27a
1a

U.S. Const. amend. I

Congress shall make no law respecting an 

establishment of religion, or prohibiting the free 

exercise thereof; or abridging the freedom of speech, 

or of the press; or the right of the people peaceably to 

assemble, and to petition the Government for a 

redress of grievances.
2a

2 U.S.C. § 441a(a)

Limitations on contributions and expenditures

(a) Dollar limits on contributions

(1) Except as provided in subsection (i) of this 

section and section 441a-1 of this title, no person 

shall make contributions—

(A) to any candidate and his authorized 

political committees with respect to any election 

for Federal office which, in the aggregate, exceed 

$2,000;

(B) to the political committees established and

maintained by a national political party, which 

are not the authorized political committees of 

any candidate, in any calendar year which, in the 

aggregate, exceed $25,000; 

(C) to any other political committee (other 

than a committee described in subparagraph (D)) 

in any calendar year which, in the aggregate, 

exceed$5,000; or 

(D) to a political committee established and

maintained by a State committee of a political

party in any calendar year which, in the 

aggregate, exceed $10,000.

(2) No multicandidate political committee shall

make contributions—

(A) to any candidate and his authorized 

political committees with respect to any election 

for Federal office which, in the aggregate, exceed 

$5,000;

(B) to the political committees established and

maintained by a national political party, which 
3a

are not the authorized political committees of 

any candidate, in any calendar year, which, in 

the aggregate, exceed $15,000; or

(C) to any other political committee in any 

calendar year which, in the aggregate, exceed 

$5,000.

(3) During the period which begins on January 1 

of an odd-numbered year and ends on December 31 of 

the next even-numbered year, no individual may 

make contributions aggregating more than—

(A) $37,500, in the case of contributions to 

candidates and the authorized committees of 

candidates; 

(B) $57,500, in the case of any other

contributions, of which not more than $37,500

may be attributable to contributions to political 

committees which are not political committees of 

national political parties. 

(4) The limitations on contributions contained in

paragraphs (1) and (2) do not apply to transfers 

between and among political committees which are 

national, State, district, or local committees 

(including any subordinate committee thereof) of the 

same political party. For purposes of paragraph (2), 

the term “multicandidate political committee” means 

a political committee which has been registered 

under section 433 of this title for a period of not less 

than 6 months, which has received contributions 

from more than 50 persons, and, except for any State 

political party organization, has made contributions 

to 5 or more candidates for Federal office. 
4a

(5) For purposes of the limitations provided by 

paragraph (1) and paragraph (2), all contributions 

made by political committees established or financed 

or maintained or controlled by any corporation, labor 

organization, or any other person, including any 

parent, subsidiary, branch, division, department, or 

local unit of such corporation, labor organization, or 

any other person, or by any group of such persons, 

shall be considered to have been made by a single 

political committee, except that (A) nothing in this 

sentence shall limit transfers between political 

committees of funds raised through joint fund raising 

efforts; (B) for purposes of the limitations provided by

paragraph (1) and paragraph (2) all contributions

made by a single political committee established or

financed or maintained or controlled by a national

committee of a political party and by a single political 

committee established or financed or maintained or 

controlled by the State committee of a political party 

shall not be considered to have been made by a single 

political committee; and (C) nothing in this section 

shall limit the transfer of funds between the 

principal campaign committee of a candidate seeking 

nomination or election to a Federal office and the 

principal campaign a committee of that candidate for 

nomination or election to another Federal office if

(i) such transfer is not made when the candidate is 

actively seeking nomination or election to both such 

offices; (ii) the limitations contained in this Act on

contributions by persons are not exceeded by such 

transfer; and (iii) the candidate has not elected to 

receive any funds under chapter 95 or chapter 96 of 

title 26. In any case in which a corporation and any of 

its subsidiaries, branches, divisions, departments, or 
5a

local units, or a labor organization and any of its 

subsidiaries, branches, divisions, departments, or 

local units establish or finance or maintain or control 

more than one separate segregated fund, all such 

separate segregated funds shall be treated as a single 

separate segregated fund for purposes of the 

limitations provided by paragraph (1) and paragraph 

(2).

(6) The limitations on contributions to a 

candidate imposed by paragraphs (1) and (2) of this 

subsection shall apply separately with respect to 

each election, except that all elections held in any 

calendar year for the office of President of the United 

States (except a general election for such office) shall 

be considered to be one election.

(7) For purposes of this subsection—

(A) contributions to a named candidate made 

to any political committee authorized by such 

candidate to accept contributions on his behalf 

shall be considered to be contributions made to 

such candidate;

(B)(i) expenditures made by any person in 

cooperation, consultation, or concert, with, or at 

the request or suggestion of, a candidate, his 

authorized political committees, or their agents, 

shall be considered to be a contribution to such 

candidate; 

(ii) expenditures made by any person (other 

than a candidate or candidate’s authorized 

committee) in cooperation, consultation, or 

concert with, or at the request or suggestion of, a 

national, State, or local committee of a political 
6a

party, shall be considered to be contributions 

made to such party committee; and 

(iii) the financing by any person of the 

dissemination, distribution, or republication, in 

whole or in part, of any broadcast or any written, 

graphic, or other form of campaign materials 

prepared by the candidate, his campaign 

committees, or their authorized agents shall be 

considered to be an expenditure for purposes of 

this paragraph; and1

(C) if—

(i) any person makes, or contracts to make, 

any disbursement for any electioneering 

communication (within the meaning of section 

434(f)(3) of this title); and 

(ii) such disbursement is coordinated with a 

candidate or an authorized committee of such 

candidate, a Federal, State, or local political 

party or committee thereof, or an agent or official 

of any such candidate, party, or committee; 

such disbursement or contracting shall be 

treated as a contribution to the candidate 

supported by the electioneering communication 

or that candidate’s party and as an expenditure 

by that candidate or that candidate’s party; and 

(D) contributions made to or for the benefit 

of any candidate nominated by a political party 

for election to the office of Vice President of the 

United States shall be considered to be 

contributions made to or for the benefit of the 

 

1 So in original. The word ‘‘and’’ probably should not appear.
7a

candidate of such party for election to the office 

of President of the United States.

(8) For purposes of the limitations imposed by 

this section, all contributions made by a person, 

either directly or indirectly, on behalf of a particular 

candidate, including contributions which are in any 

way earmarked or otherwise directed through an 

intermediary or conduit to such candidate, shall be 

treated as contributions from such person to such 

candidate. The intermediary or conduit shall report 

the original source and the intended recipient of such 

contribution to the Commission and to the intended 

recipient.
8a

2 U.S.C. § 441f

Contributions in name of another prohibited

No person shall make a contribution in the name 

of another person or knowingly permit his name to be

used to effect such a contribution, and no person 

shall knowingly accept a contribution made by one 

person in the name of another person.
9a

18 U.S.C. § 608 (1970 ed., Supp. IV)

Limitations on political contributions and 

purchases.

(a) Personal funds of candidate and family.

(1) No candidate may make expenditures 

from his personal funds, or the personal funds of 

his immediate family, in connection with his 

campaigns during any calendar year for 

nomination for election, or for election, to 

Federal office in excess of, in the aggregate-

(A) $50,000, in the case of a candidate for the 

office of President or Vice President of the 

United States;

(B) $35,000, in the case of a candidate for the 

office of Senator or for the office of 

Representative from a State which is entitled to 

only one Representative; or

(C) $25,000, in the case of a candidate for the 

office of Representative, or Delegate or Resident 

Commissioner, in any other State. 

For purposes of this paragraph, any expenditure 

made in a year other than the calendar year in 

which the election is held with respect to which 

such expenditure was made, is considered to be 

made during the calendar year in which such 

election is held.

(2) For purposes of this subsection, 

“immediate family” means a candidate's spouse, 

and any child, parent, grandparent, brother, or 

sister of the candidate, and the spouses of such 

persons.
10a

(3) No candidate or his immediate family 

may make loans or advances from their personal 

funds in connection with his campaign for 

nomination for election, or for election, to 

Federal office unless such loan or advance is 

evidenced by a written instrument fully 

disclosing the terms and conditions of such loan 

or advance.

(4) For purposes of this subsection, any such 

loan or advance shall be included in computing 

the total amount of such expenditures only to the

extent of the balance of such loan or advance 

outstanding and unpaid.

(b) Contributions by persons and committees.

(1) Except as otherwise provided by 

paragraphs (2) and (3), no person shall make 

contributions to any candidate with respect to 

any election for Federal office which, in the 

aggregate, exceed $1,000.

(2) No political committee (other than a 

principal campaign committee) shall make 

contributions to any candidate with respect to 

any election for Federal office which, in the 

aggregate, exceed $5,000. Contributions by the 

national committee of a political party serving as 

the principal campaign committee of a candidate 

for the office of President of the United States 

shall not exceed the limitation imposed by the 

preceding sentence with respect to any other 

candidate for Federal office. For purposes of this 

paragraph, the term “political committee” means 

an organization registered as a political 

committee under section 433, Title 2, United 
11a

States Code, for a period of not less than 6 

months which has received contributions from 

more than 50 persons and, except for any State 

political party organization, has made 

contributions to 5 or more candidates for Federal 

office.

(3) No individual shall make contributions 

aggregating more than $25,000 in any calendar 

year. For purposes of this paragraph, any 

contribution made in a year other than the 

calendar year in which the election is held with 

respect to which such contribution was made, is 

considered to be made during the calendar year 

in which such election is held.

(4) For purposes of this subsection-

(A) contributions to a named candidate made 

to any political committee authorized by such 

candidate, in writing, to accept contributions on 

his behalf shall be considered to be contributions 

made to such candidate; and

(B) contributions made to or for the benefit 

of any candidate nominated by a political party 

for election to the office of Vice President of the 

United States shall be considered to be 

contributions made to or for the benefit of the 

candidate of such party for election to the office 

of President of the United States.

(5) The limitations imposed by paragraphs 

(1) and (2) of this subsection shall apply 

separately with respect to each election, except 

that all elections held in any calendar year for 

the office of President of the United States 
12a

(except a general election for such office) shall be 

considered to be one election.

(6) For purposes of the limitations imposed 

by this section, all contributions made by a 

person, either directly or indirectly, on behalf of 

a particular candidate, including contributions 

which are in any way earmarked or otherwise 

directed through an intermediary or conduit to 

such candidate, shall be treated as contributions 

from such person to such candidate. The 

intermediary or conduit shall report the original 

source and the intended recipient of such 

contribution to the Commission and to the 

intended recipient.

(c) Limitations on expenditures.

(1) No candidate shall make expenditures in 

excess of—

(A) $10,000,000, in the case of a candidate 

for nomination for election to the office of 

President of the United States, except that the 

aggregate of expenditures under this 

subparagraph in any one State shall not exceed 

twice the expenditure limitation applicable in 

such State to a candidate for nomination for 

election to the office of Senator, Delegate, or 

Resident Commissioner, as the case may be;

(B) $20,000,000, in the case of a candidate 

for election to the office of President of the 

United States;

(C) in the case of any campaign for 

nomination for election by a candidate for the 

office of Senator or by a candidate for the office of 
13a

Representative from a State which is entitled to 

only one Representative, the greater of-

(i) 8 cents multiplied by the voting age 

population of the State (as certified under 

subsection (g)); or

(ii) $100,000;

(D) in the case of any campaign for election 

by a candidate for the office of Senator or by a 

candidate for the office of Representative from a 

State which is entitled to only one 

Representative, the greater of—

(i) 12 cents multiplied by the voting age 

population of the State (as certified under 

subsection (g)); or

(ii) $150,000;

(E) $70,000, in the case of any campaign for 

nomination for election, or for election, by a 

candidate for the office of Representative in any 

other State, Delegate from the District of 

Columbia, or Resident Commissioner; or

(F) $15,000, in the case of any campaign for 

nomination for election, or for election, by a 

candidate for the office of Delegate from Guam or 

the Virgin Islands.

(2) For purposes of this subsection-

(A) expenditures made by or on behalf of any 

candidate nominated by a political party for 

election to the office of Vice President of the 

United States shall be considered to be 

expenditures made by or on behalf of the 
14a

candidate of such party for election to the office 

of President of the United States; and

(B) an expenditure is made on behalf of a 

candidate, including a vice presidential 

candidate, if it is made by—

(i) an authorized committee or any other 

agent of the candidate for the purposes of 

making any expenditure; or

(ii) any person authorized or requested by 

the candidate, an authorized committee of the 

candidate, or an agent of the candidate, to make 

the expenditure.

(3) The limitations imposed by 

subparagraphs (C), (D), (E), and (F) of paragraph 

(1) of this subsection shall apply separately with 

respect to each election.

(4) The Commission shall prescribe rules 

under which any expenditure by a candidate for 

presidential nomination for use in 2 or more 

States shall be attributed to such candidate's 

expenditure limitation in each such State, based 

on the voting age population in such State which 

can reasonably be expected to be influenced by 

such expenditure.

(d) Adjustment of limitations based on price index.

(1) At the beginning of each calendar year 

(commencing in 1976), as there become available 

necessary data from the Bureau of Labor 

Statistics of the Department of Labor, the 

Secretary of Labor shall certify to the 

Commission and publish in the Federal Register 

the per centum difference between the price 
15a

index for the 12 months preceding the beginning 

of such calendar year and the price index for the 

base period. Each limitation established by 

subsection (c) and subsection (f) shall be 

increased by such per centum difference. Each 

amount so increased shall be the amount in 

effect for such calendar year.

(2) For purposes of paragraph (1)—

(A) the term “price index” means the average 

over a calendar year of the Consumer Price 

Index (all items—United States city average) 

published monthly by the Bureau of Labor 

Statistics; and

(B) the term “base period” means the 

calendar year 1974.

(e) Expenditure relative to clearly identified 

candidate.

(1) No person may make any expenditure 

(other than an expenditure made by or on behalf 

of a candidate within the meaning of subsection 

(c)(2)(B)) relative to a clearly identified candidate 

during a calendar year which, when added to all 

other expenditures made by such person during 

the year advocating the election or defeat of such 

candidate, exceeds $1,000.

(2) For purposes of paragraph (1)—

(A) “clearly identified” means—

(i) the candidate's name appears;

(ii) a photograph or drawing of the candidate 

appears; or
16a

(iii) the identity of the candidate is apparent 

by unambiguous reference; and

(B) “expenditure” does not include any 

payment made or incurred by a corporation or a 

labor organization which, under the provisions of 

the last paragraph of section 610, would not 

constitute an expenditure by such corporation or 

labor organization.

(f) Exceptions for national and State committees.

(1) Notwithstanding any other provision of 

law with respect to limitations on expenditures 

or limitations on contributions, the national 

committee of a political party and a State 

committee of a political party, including any 

subordinate committee of a State committee, 

may make expenditures in connection with the 

general election campaign of candidates for 

Federal office, subject to the limitations 

contained in paragraphs (2) and (3) of this 

subsection.

(2) The national committee of a political 

party may not make any expenditure in 

connection with the general election campaign of 

any candidate for President of the United States 

who is affiliated with such party which exceeds 

an amount equal to 2 cents multiplied by the 

voting age population of the United States (as 

certified under subsection (g)). Any expenditure 

under this paragraph shall be in addition to any 

expenditure by a national committee of a 

political party serving as the principal campaign 

committee of a candidate for the office of 

President of the United States.
17a

(3) The national committee of a political 

party, or a State committee of a political party, 

including any subordinate committee of a State 

committee, may not make any expenditure in 

connection with the general election campaign of 

a candidate for Federal office in a State who is 

affiliated with such party which exceeds—

(A) in the case of a candidate for election to 

the office of Senator, or of Representative from a 

State which is entitled to only one 

Representative, the greater of—

(i) 2 cents multiplied by the voting age 

population of the State (as certified under 

subsection (g)); or

(ii) $20,000; and

(B) in the case of a candidate for election to 

the office of Representative, Delegate, or 

Resident Commissioner in any other State, 

$10,000.

(g) Voting age population estimates. During the 

first week of January 1975, and every subsequent 

year, the Secretary of Commerce shall certify to the 

Commission and publish in the Federal Register an 

estimate of the voting age population of the United 

States, of each State, and of each congressional 

district as of the first day of July next preceding the 

date of certification. The term “voting age population” 

means resident population, 18 years of age or older.

(h) Knowing violations. No candidate or political 

committee shall knowingly accept any contribution or 

make any expenditure in violation of the provisions 

of this section. No officer or employee of a political 
18a

committee shall knowingly accept a contribution 

made for the benefit or use of a candidate, or 

knowingly make any expenditure on behalf of a 

candidate, in violation of any limitation imposed on 

contributions and expenditures under this section.

(i) Penalties. Any person who violates any 

provision of this section shall be fined not more than 

$25,000 or imprisoned not more than 1 year, or both.
19a

11 C.F.R. § 100.5(g)

(g) Affiliated committee. (1) All authorized 

committees of the same candidate for the same 

election to Federal office are affiliated.

(2) All committees (including a separate 

segregated fund, see 11 CFR part 114) 

established, financed, maintained or controlled 

by the same corporation, labor organization, 

person, or group of persons, including any 

parent, subsidiary, branch, division, department,

or local unit thereof, are affiliated. Local unit

may include, in appropriate cases, a franchisee, 

licensee, or State or regional association.

(3) Affiliated committees sharing a single 

contribution limitation under paragraph (g)(2) of 

this section include all of the committees 

established, financed, maintained or controlled

by—

(i) A single corporation and/or its 

subsidiaries;

(ii) A single national or international union 

and/or its local unions or other subordinate 

organizations;

(iii) An organization of national or 

international unions and/or all its State and local 

central bodies; 

(iv) A membership organization, (other than 

political party committees, see 11 CFR 110.3(b)) 

including trade or professional associations, see 

11 CFR 114.8(a), and/or related State and local 

entities of that organization or group; or

(v) The same person or group of persons.
20a

(4)(i) The Commission may examine the 

relationship between organizations that sponsor 

committees, between the committees themselves, 

or between one sponsoring organization and a 

committee established by another organization to

determine whether committees are affiliated.

(ii) In determining whether committees not 

described in paragraphs (g)(3) (i)-(iv) of this 

section are affiliated, the Commission will 

consider the circumstantial factors described in 

paragraphs (g)(4)(ii) (A)through (J) of this 

section. The Commission will examine these 

factors in the context of the overall relationship 

between committees or sponsoring organizations

to determine whether the presence of any factor 

or factors is evidence of one committee or 

organization having been established, financed, 

maintained or controlled by another committee 

or sponsoring organization. Such factors include, 

but are not limited to:

(A) Whether a sponsoring organization owns 

controlling interest in the voting stock or 

securities of the sponsoring organization of 

another committee;

(B) Whether a sponsoring organization or 

committee has the authority or ability to direct 

or participate in the governance of another 

sponsoring organization or committee through 

provisions of constitutions, bylaws, contracts, or 

other rules, or through formal or informal 

practices or procedures;

(C) Whether a sponsoring organization or 

committee has the authority or ability to hire, 
21a

appoint, demote or otherwise control the officers, 

or other decision-making employees or members 

of another sponsoring organization or committee;

(D) Whether a sponsoring organization or 

committee has a common or overlapping 

membership with another sponsoring 

organization or committee which indicates a 

formal or ongoing relationship between the

sponsoring organizations or committees;

(E) Whether a sponsoring organization or 

committee has common or overlapping officers or 

employees with another sponsoring organization 

or committee which indicates a formal or ongoing 

relationship between the sponsoring 

organizations or committees;

(F) Whether a sponsoring organization or 

committee has any members, officers or 

employees who were members, officers or 

employees of another sponsoring organization or 

committee which indicates a formal or ongoing 

relationship between the sponsoring 

organizations or committees, or which indicates 

the creation of a successor entity;

(G) Whether a sponsoring organization or 

committee provides funds or goods in a 

significant amount or on an ongoing basis to 

another sponsoring organization or committee, 

such as through direct or indirect payments for 

administrative, fundraising, or other costs, but 

not including the transfer to a committee of its 

allocated share of proceeds jointly raised 

pursuant to 11 CFR 102.17;
22a

(H) Whether a sponsoring organization or 

committee causes or arranges for funds in a 

significant amount or on an ongoing basis to be 

provided to another sponsoring organization or 

committee, but not including the transfer to a 

committee of its allocated share of proceeds 

jointly raised pursuant to 11 CFR 102.17;

(I) Whether a sponsoring organization or 

committee or its agent had an active or 

significant role in the formation of another 

sponsoring organization or committee; and

(J) Whether the sponsoring organizations or 

committees have similar patterns of 

contributions or contributors which indicates a 

formal or ongoing relationship between the 

sponsoring organizations or committees.

(5) Notwithstanding paragraphs (g)(2) 

through (g)(4) of this section, no authorized 

committee shall be deemed affiliated with any 

entity that is not an authorized committee.
23a

11 C.F.R. § 110.4(b)

(b) Contributions in the name of another. (1) No 

person shall—

(i) Make a contribution in the name of 

another;

(ii) Knowingly permit his or her name to be 

used to effect that contribution;

(iii) Knowingly help or assist any person in 

making a contribution in the name of another; or

(iv) Knowingly accept a contribution made 

by one person in the name of another.

(2) Examples of contributions in the name of 

another include—

(i) Giving money or anything of value, all or 

part of which was provided to the contributor by 

another person (the true contributor) without 

disclosing the source of money or the thing of 

value to the recipient candidate or committee at 

the time the contribution is made, see 11 CFR 

110.6; or

(ii) Making a contribution of money or 

anything of value and attributing as the source 

of the money or thing of value another person 

when in fact the contributor is the source.
24a

11 C.F.R. § 110.5

(a) Scope. This section applies to all 

contributions made by any individual, except 

individuals prohibited from making contributions 

under 11 CFR 110.20 and 11 CFR part 115.

(b) Biennial limitations. (1) In the two-year 

period beginning on January 1 of an odd-numbered 

year and ending on December 31 of the next evennumbered year, no individual shall make 

contributions aggregating more than $95,000, 

including no more than:

(i) $37,500 in the case of contributions to

candidates and the authorized committees of 

candidates; and

(ii) $57,500 in the case of any other 

contributions, of which not more than $37,500

maybe attributable to contributions to political 

committees that are not political committees of 

any national political parties.

(2) [Reserved by 73 FR 79602]

(3) The contribution limitations in 

paragraph (b)(1)of this section shall be increased 

by the percent difference in the price index in 

accordance with 11 CFR 110.17. The increased 

contribution limitations shall be in effect for the 

two calendar years starting on January 1 of the 

year in which the contribution limitations are

increased.

(4) In every odd-numbered year, the 

Commission will publish in the FEDERAL 

REGISTER the amount of the contribution 
25a

limitations in effect and place such information 

on the Commission’s Web site.

(c)(1) Contributions made on or after January 1, 

2004. Any contribution subject to this paragraph 

(c)(1) to a candidate or his or her authorized 

committee with respect to a particular election shall 

be considered to be made during the two-year period 

described in paragraph (b)(1) of this section in which 

the contribution is actually made, regardless of the 

year in which the particular election is held. See 11 

CFR 110.1(b)(6). This paragraph (c)(1) also applies to 

earmarked contributions and contributions to a 

single candidate committee that has supported or 

anticipates supporting the candidate.

(2) Contributions made prior to January 1, 

2004. (i) For purposes of this paragraph (c)(2), a 

contribution to a candidate or his or her 

authorized committee with respect to a 

particular election shall be considered to be 

made during the calendar year in which such 

election is held.

(ii) For purposes of this paragraph (c)(2), any 

contribution to an unauthorized committee shall 

not be considered to be made during the calendar 

year in which an election is held unless:

(A) The political committee is a single

candidate committee which has supported or 

anticipates supporting the candidate; or

(B) The contribution is earmarked by the 

contributor for a particular candidate with 

respect to a particular election.
26a

(d) Independent expenditures. The biennial

limitation on contributions in made to persons, 

including political committees, making independent 

expenditures under 11 CFR part 109.

(e) Contributions to delegates and delegate

committees. The biennial limitation on contributions 

in this section applies to contributions to delegate 

and delegate committees under 11 CFR 110.14.
27a

11 C.F.R. § 110.6

(a) General. All contributions by a person made 

on behalf of or to a candidate, including contributions

which are in any way earmarked or otherwise 

directed to the candidate through an intermediary or 

conduit, are contributions from the person to the 

candidate.

(b) Definitions. (1) For purposes of this section, 

earmarked means a designation, instruction, or 

encumbrance, whether direct or indirect, express or 

implied, oral or written, which results in all or any 

part of a contribution or expenditure being made to, 

or expended on behalf of, a clearly identified 

candidate or a candidate’s authorized committee.

(2) For purposes of this section, conduit or 

intermediary means any person who receives and 

forwards an earmarked contribution to a 

candidate or a candidate’s authorized committee, 

except as provided in paragraph(b)(2)(i) of this 

section.

(i) For purposes of this section, the following 

persons shall not be considered to be conduits or 

intermediaries:

(A) An individual who is an employee or a 

full-time volunteer working for the candidate’s 

authorized committee, provided that the 

individual is not acting in his or her capacity as a 

representative of an entity prohibited from 

making contributions;

(B) A fundraising representative conducting 

joint fundraising with the candidate’s authorized 

committee pursuant to 11 CFR 102.17 or 9034.8;
28a

(C) An affiliated committee, as defined in 11 

CFR 100.5(g);

(D) A commercial fundraising firm retained 

by the candidate or the candidate’s authorized 

committee to assist in fundraising; and

(E) An individual who is expressly 

authorized by the candidate or the candidate’s 

authorized committee to engage in fundraising, 

and who occupies a significant position within 

the candidate’s campaign organization, provided 

that the individual is not acting in his or her 

capacity as a representative of an entity 

prohibited from making contributions.

(ii) Any person who is prohibited from 

making contributions or expenditures in 

connection with an election for Federal office 

shall be prohibited from acting as a conduit for 

contributions earmarked to candidates or their 

authorized committees. The provisions of this

section shall not restrict the ability of an 

organization or committee to serve as a collecting 

agent for a separate segregated fund pursuant to 

11 CFR 102.6.

(iii) Any person who receives an earmarked 

contribution shall forward such earmarked 

contribution to the candidate or authorized 

committee in accordance with 11 CFR 102.8, 

except that—

(A) A fundraising representative shall follow 

the joint fundraising procedures set forth at 11 

CFR 102.17.
29a

(B) A person who is prohibited from acting 

as a conduit pursuant to paragraph (b)(2)(ii) of 

this section shall return the earmarked 

contribution to the contributor.

(c) Reporting of earmarked contributions—(1) 

Reports by conduits and intermediaries. (i) The 

intermediary or conduit of the earmarked 

contribution shall report the original source and the 

recipient candidate or authorized committee to the 

Commission or the Secretary of the Senate, as 

appropriate (see 11 CFR part 105), and to the 

recipient candidate or authorized committee.

(ii) The report to the Commission or 

Secretary shall be included in the conduit’s or 

intermediary’s report for the reporting period in 

which the earmarked contribution was received, 

or, if the conduit or intermediary is not required 

to report under 11 CFR part 104, by letter to the 

Commission within thirty days after forwarding

the earmarked contribution.

(iii) The report to the recipient candidate or 

authorized committee shall be made when the 

earmarked contribution is forwarded to the 

recipient candidate or authorized committee 

pursuant to 11 CFR 102.8.

(iv) The report by the conduit or 

intermediary shall contain the following 

information:

(A) The name and mailing address of each 

contributor and, for each earmarked contribution 

in excess of $200, the contributor’s occupation 

and the name of his or her employer;
30a

(B) The amount of each earmarked 

contribution, the date received by the conduit, 

and the intended recipient as designated by the 

contributor; and 

(C) The date each earmarked contribution 

was forwarded to the recipient candidate or 

authorized committee and whether the 

earmarked contribution was forwarded in cash or 

by the contributor’s check or by the conduit’s 

check.

(v) For each earmarked contribution passed 

through the conduit’s or intermediary’s account, 

the information specified in paragraph (c)(1)(iv) 

(A) through (C) of this section shall be itemized 

on the appropriate schedules of receipts and 

disbursements attached to the conduit’s or 

intermediary’s report, or shall be disclosed by

letter, as appropriate. For each earmarked 

contribution forwarded in the form of the 

contributor’s check or other written instrument, 

the information specified in paragraph (c)(1)(iv) 

(A) through (C) of this section shall be disclosed 

as a memo entry on the appropriate schedules of 

receipts and disbursements attached to the 

conduit’s or intermediary’s report, or shall be 

disclosed by letter, as appropriate.

(2) Reports by recipient candidates and 

authorized committees. (i) The recipient 

candidate or authorized committee shall report 

each conduit or intermediary who forwards one 

or more earmarked contributions which in the 

aggregate exceed $200 in any calendar year.
31a

(ii) The report by the recipient candidate or 

authorized committee shall contain the following 

information:

(A) The identification of the conduit or 

intermediary, as defined in 11 CFR 100.12;

(B) The total amount of earmarked 

contributions received from the conduit or 

intermediary and the date of receipt; and

(C) The information required under 11 CFR

104.3(a) (3) and (4) for each earmarked 

contribution which in the aggregate exceeds $200 

in any calendar year.

(iii) The information specified in paragraph 

(c)(2)(ii)(A) through (C) of this section shall be 

itemized on Schedule A attached to the report for 

the reporting period in which the earmarked 

contribution is received.

(d) Direction or control. (1) A conduit’s or 

intermediary’s contribution limits are not affected by

the forwarding of an earmarked contribution except 

where the conduit or intermediary exercises any 

direction or control over the choice of the recipient 

candidate.

(2) If a conduit or intermediary exercises any 

direction or control over the choice of the 

recipient candidate, the earmarked contribution 

shall be considered a contribution by both the 

original contributor and the conduit or 

intermediary. If the conduit or intermediary

exercises any direction or control over the choice 

of the recipient candidate, the report filed by the 

conduit or intermediary and the report filed by 
32a

the recipient candidate or authorized committee 

shall indicate that the earmarked contribution is 

made by both the original contributor and the 

conduit or intermediary, and that the entire 

amount of the contribution is attributed to each.