In the Supreme Court of the United States 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 OF TEA PARTY LEADERSHIP FUND,

NATIONAL DEFENSE PAC, COMBAT VETERANS FOR

CONGRESS PAC, CONSERVATIVE MELTING POT PAC,

AND FREEDOM’S DEFENSE FUND PAC

AS AMICI CURIAE IN SUPPORT OF APPELLANTS

Date: May 13, 2013

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

PAUL D. KAMENAR

 Counsel of Record

COOLIDGE REAGAN FOUNDATION

1629 K Street, N.W., Suite 300

Washington, D.C. 20006

(202) 603-5397

paul.kamenar@gmail.com

Counsel for Amici Curiae

NO. 12-536
i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............... 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. POLITICAL ACTION COMMITTEES

HAVE FIRST AMENDMENT RIGHTS

ENTITLED TO THE HIGHEST

CONSTITUTIONAL PROTECTION . . . . . . . 8

A. PACs Play An Important Role In The

American Political System . . . . . . . . . . . . 8

B. PACs Enjoy First Amendment

Protection . . . . . . . . . . . . . . . . . . . . . . . . 11

II. THE AGGREGATE LIMITS DO NOT

SURVIVE STRICT OR EXACTING

SCRUTINY . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Aggregate Limits Do Not Serve Any

Constitutionally Valid Government

Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. The 1976 FECA Amendments

Rectified Any Circumvention Risk . . 14

2. Any Other Government Interest Is

Constitutionally Impermissible . . . . 18
ii

B. Since No Valid Anti-Corruption

Interest Exists, the Aggregate Limits

Are Not Closely Drawn And Serves As

An Unnecessary Prophylaxis . . . . . . . . . 20

III.RESTRICTIVE AGGREGATE LIMITS

DISPROPORTIONATELY IMPACT PACS AND

COMPOUND THE HARMS OF A SKEWED

CAMPAIGN FINANCE SYSTEM . . . . . . . . . . . 22

A. The Aggregate Limits Hamper PAC

Speech And Decrease Competition Of

Ideas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

B. The Base Contribution Limits,

Unadjusted For Inflation, Only

Exacerbate The Harm . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iii

TABLE OF AUTHORITIES

Cases Page(s)

Buckley v. Valeo, 

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

Cal. Democratic Party v. Jones, 

530 U.S. 567 (2000) . . . . . . . . . . . . . . . . . . . . . . 11

California Medical Association v. FEC,

453 U.S. 182 (1981) .................. passim

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011) . . . . . . . . . 1, 2

Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . 11, 18

Citizens United v. FEC, 

558 U.S. 310, 130 S. Ct. 876 (2010) ...... passim

Davis v. FEC,

554 U.S. 724 (2008) . . . . . . . . . . . . . . . . . . . . . . 18

Eu v. San Francisco County Democratic Central

Comm., 

489 U.S. 214 (1989) . . . . . . . . . . . . . . . . . . . . . . 10

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

470 U.S. 480 (1985) . . . . . . . . . . . . . . . . . . . . 6, 13

FEC v. Wisc. Right to Life, Inc., 

551 U.S. 449 (2007) . . . . . . . . . . . . . . . . . . . 7, 822
iv

First Nat’l Bank v. Bellotti, 

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . . 12

McConnell v. FEC, 

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . 19, 21

McCutcheon v. FEC, 

893 F. Supp. 2d 133 (D.D.C. 2012) 

(three-judge court) . . . . . . . . . . . . . . . . . 15, 19, 20

NAACP v. Alabama ex rel. Patterson, 

357 U.S. 449 (1958) . . . . . . . . . . . . . . . . . . . 10, 11

NAACP v. Button, 

371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . 21

Nixon v. Shrink Missouri,

528 U.S. 377 (2000) . . . . . . . . . . . . . . . . . . . . . . 23

Republican Nat’l Comm., 

698 F. Supp. 2d 150 (D.D.C. 2010) . . . . . . . 14, 19

Riley v Nat’l Fed. Of the Blind, 

487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . . . . . 26

Tashjian v. Republican Party,

479 U.S. 208 (1986) ....................... 9

United States v. Danielczyk, 

683 F.3d 611 (4th Cir. 2012) . . . . . . . . . . . . . . . 13

Wagner v. FEC, 

No. 11-1841, 2012 WL 1255145 (D.D.C. 2012) . . 6
v

Wis. Right to Life State Political Action Comm. v.

Barland, 

664 F.3d 139 (7th Cir. 2011) . . . . . . . . . . . . . . . 13

Constitutional Provisions

U.S. Const., amend. I . . . . . . . . . . . . . . . . . . . passim

Codes, Rules, and Statutes

Federal Election Campaign Act Amendments of

1976 .............................. passim

2 U.S.C. § 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

2 U.S.C. § 441a(a)(1) . . . . . . . . . . . . . . . . 5, 12, 24, 25

2 U.S.C. § 441a(a)(3) . . . . . . . . . . . . . . . . . . . 5, 12, 24

2 U.S.C. § 441a(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 16

2 U.S.C. § 441a(c)(1) . . . . . . . . . . . . . . . . . . . . . . 5, 25

2 U.S.C. § 441a(f) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Regulations

11 C.F.R. § 100.5(a) . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

11 C.F.R. § 102.1(d) . . . . . . . . . . . . . . . . . . . . . . . . 4, 9
1

INTEREST OF AMICI CURIAE1

The Tea Party Leadership Fund (“TPLF”) is a nonconnected hybrid2 political action committee (“PAC”)

dedicated to promoting individual freedom, limited

federal government, and returning political power to

the states and the people.

TPLF registered with the Federal Election

Commission (“FEC”) on May 9, 2012. Since then, TPLF

has received contributions in mostly small-dollar

amounts from over 25,000 individuals and has

contributed to more than five candidates, and thus is

considered a multicandidate committee permitted by

law to make contributions of up to $5,000 to each

1

 Pursuant to Sup. Ct. Rule 37.6, co-counsel for Appellant

McCutcheon has made a monetary contribution to partially fund

the preparation of this brief. No other person, other than amici

curiae, their members, or their counsel made a monetary

contribution to its preparation or submission. All parties have

consented to the filing of this brief.

2

 A hybrid PAC is a political action committee that maintains a

separate, non-contribution (“Carey”) account from which it may

receive unlimited contributions to make independent expenditures

but which may receive only limited contributions from individuals

with which to make PAC contributions to candidates. Carey v.

FEC, 791 F.Supp.2d 121 (D.D.C. 2011). Throughout this brief,

“PAC” refers to traditional PACs, i.e., candidate-connected and

non-connected political action committees, and hybrid PACs.

Traditional PACs are subject to limits on contributions they may

receive and contributions they may make to candidates and other

committees; however, unlike individuals, PACs face no aggregate

limit of contributions they may make to candidates or committees.

See FED. ELECTION COMM’N, THE FEC CAMPAIGN GUIDE FOR NONCONNECTED COMMITTEES at 1-2 (May 2008). 
2

candidate per election. By pooling these contributions,

TPLF is able to express its unique political perspective,

engage in independent advocacy and contribute to

political candidates. But under the aggregate

contribution limits at issue in this case, individuals

wishing to contribute to TPLF are prohibited from

doing so if they have already reached their arbitrary

and unconstitutional aggregate limits of contributions

made to other committees or candidates, thereby

preventing TPLF pooling such funds to make

contributions to candidates that TPLF supports. 

The National Defense Political Action Committee is

dedicated to electing military veterans to the U. S.

Congress who share the traditional American values of

a limited fiscally responsible government, ensuring a

strong national defense, protecting the rights/interests

of service members, and our historic commitment to

our veterans. The National Defense Political Action

Committee, a hybrid non-connected PAC, was formed

in 2000 and is chaired by Rear Admiral [Ret.] James J

Carey. See Carey v. FEC, 791 F.Supp.2d 121 (D.D.C.

2011).

The Combat Veterans For Congress Political Action

Committee (CVFC) is dedicated to supporting the

election of fiscally conservative combat veterans to

Congress. CVFC supports veteran-candidates who

believe in limited government, will rein in the out-ofcontrol spending of Congress, are committed to

preserving and defending the U.S. Constitution, and

will support the independence and freedom of the

individual as outlined in the Bill of Rights. CVFC

supports candidates who are also dedicated to

promoting the free enterprise system creating the
3

greatest economic engine in the history of mankind,

who support a strong national defense, and will

endorse the teaching of U.S. history and the Founding

Fathers’ core values in educational institutions. CVFC,

a “traditional” non-connected PAC, was formed in 2009

and is chaired by Captain [Ret.] Joseph John.

Conservative Melting Pot Political Action

Committee was created to bring the GOP back to its

roots as the party promoting equality and economic

opportunity for all, by supporting federal and state

candidates, particularly minorities and women, who

are committed to taking the conservative message to

every demographic. Conservative Melting Pot Political

Action Committee, a “traditional” non-connected PAC,

was formed in 2013 and is chaired by Crystal Wright.

Freedom’s Defense Fund PAC is dedicated to the

principles of limited government, as the Founders

understood them. Freedom’s Defense Fund believes

that when government oversteps the bounds of its

authority, it does so at the expense of liberty, and that

in order for America to prosper it must be free from the

shackles of the nanny state. Freedom’s Defense Fund

Political Action Committee, a “traditional” nonconnected PAC, was formed in 2012 and is chaired by

Michael Centanni.

This case is particularly important to all amici

because the aggregate contribution limits prohibit likeminded individuals from contributing to and

associating with amici and other PACs once those

individuals have reached their aggregate contribution

limits. The aggregate contribution limits also

effectively bar amici and all other PACs from
4

associating with such individuals and from speaking

“too much” in the political marketplace, thereby

diminishing PAC speech relative to that of candidates

and national party committees. In short, amici’s First

Amendment rights of association and speech are

unconstitutionally abridged by the aggregate individual

contribution limits.

SUMMARY OF THE ARGUMENT

The aggregate contribution limits imposed on

individuals not only critically infringe upon their core

First Amendment rights, but also inflict a special

constitutional injury on the exercise of political speech

by all PACs, including amici. PACs play an integral

part in the American political process, and their robust

participation in state and federal elections is

fundamental to our very system of self-governance.

With distinct viewpoints focusing on issues spanning

the political spectrum, PACs provide the means for all

individuals to join with like-minded citizens and make

their voices heard. Indeed, establishing a PAC is

mandatory for individuals who wish to engage in

collective political advocacy independent from

campaigns and national party committees. See 2 U.S.C.

§ 431(4); 11 C.F.R. § 100.5(a); § 102.1(d). Any two

people who wish to pool their resources and exercise

their First Amendment rights by participating in the

political campaign process must register as a PAC

within ten days of their contributions or expenditures

exceeding $1,000, and are subject to the myriad of

statutory provisions and FEC regulations. Id. PACs are

immediately subject to both base limits on

contributions from individuals and aggregate

contribution limits that limit PACs’ ability to exercise
5

their core First Amendment rights. 2 U.S.C.

§ 441a(a)(3)(B). 

The base contribution limits bar PACs from

soliciting or accepting contributions from individuals of

more than $5,000 per election. Moreover, once an

individual has met his or her aggregate biennial

contribution limit of $74,600 to non-candidate PACs

and state and local party committees, that individual

is barred from contributing any funds at all to

additional PACs, ranging from even one dollar to the

small, non-corrupting amount of $5,000. See 2 U.S.C.

§ 441a(a)(1)(C); § 441a(a)(3)(B). Individuals are further

barred from contributing more than $48,600 to all

candidate committees. Thus, the total aggregate limit

of all political contributions from individuals cannot

exceed $123,200. Further, the current legal regime

arbitrarily does not index individual contribution limits

to PACs to account for inflation, as is the case for an

individual’s contributions to all other candidate and

party committees. Thus, PAC speech unfairly declines

biennially in proportion to that of other political

participants. See U.S.C. § 441a(c)(1). 

The government can only justify such First

Amendment injury by demonstrating a compelling

governmental interest, which the regulation is

narrowly tailored to advance or protect. See Citizens

United v. FEC, 558 U.S 310, 340 (2010). But in order

for a contribution or expenditure limit, both of which

“operate in an area of the most fundamental First

Amendment activities,” Buckley. Valeo, 424 U.S. 1, 14

(1976), to survive any level of constitutional scrutiny,

the government bears the burden of establishing a

valid interest in preventing corruption or its
6

appearance. See FEC v. Nat’l Conservative Political

Action Comm., 470 U.S. 480, 496-97 (1985) (“NCPAC”). 

As this Court made clear in Citizens United, the only

kind of “corruption” that may be regulated is the actual

or appearance of a “quid pro quo.” See Citizens United

v. FEC, 130 S. Ct. 876, 909 (2010). Preventing “quid

pro quo” corruption is the only compelling

governmental interest, and it is narrowly defined as an

elected leader making legislative decisions (in

Congress) or executive decisions (in the case of the

President and his Cabinet) in return for financial

support. Further, the regulation must be “closely

drawn” and “avoid unnecessary abridgment of

associational freedoms.” Wagner v. FEC, No. 11-1841,

2012 WL 1255145, at *6 (D.D.C. 2012) (quoting

Buckley, 424 U.S. at 25). Granting access and influence

or showing gratitude do not amount to corruption;

indeed, amici submit that regulating this behavior

would unlawfully infringe on yet another important

First Amendment right: the right to petition the

government for a redress of grievances. See Citizens

United, 130 S. Ct. at 909 (2010).

Here, the government has proffered no presently

valid anti-corruption interest necessitating such

serious infringement. In Buckley v. Valeo, this Court

held that the single contribution ceiling for all

contributions was constitutionally justifiable because

it prevented individuals from circumventing

contribution limits. 424 U.S. at 38. Thereafter,

Congress enacted the 1976 Amendments to the Federal

Election Campaign Act, which removed any possibility

of lawful circumvention by adding new base limits on

contributions to and by entities. Therefore, no

cognizable government interest currently exists
7

sufficient to validate stifling highly protected political

speech and association. Thus, the current aggregate

limits at issue in this case established under the

Bipartisan Campaign Reform Act of 2002 (BCRA) now

serve as an impermissible “prophylaxis upon

prophylaxis” as an anticorruption measure. See FEC

v. Wisc. Rt. to Life, Inc., 551 U.S. 449, 478-79 (2007)

(“WRTL”). 

More significantly, the only compelling

governmental interest in preventing quid pro quo

corruption is totally absent with respect to

contributions to PACs for a simple reason: unlike

Members of Congress or the Executive, PACs do not

introduce or vote on legislation, execute the laws, or

otherwise bestow political favors. This absence of any

possible corruption of PACs by individuals (or somehow

twice-removed through PACs to the candidates the

PACs support) is further underscored by the fact that

the law does not impose any aggregate limits on

contributions from PACs to candidates. Thus, there is

no rational basis, let alone a compelling reason, for a

law that limits the aggregate amount an individual

may give to PACs, which have no legislative power, yet

imposes no aggregate limit on the amount that PACs

may contribute to incumbents who do, or to candidates

who potentially will, wield such power. Moreover, if the

aggregate limits are unconstitutional as applied to

national party committees, as ably argued by Appellant

RNC, then they are a fortiori unconstitutional as

applied to non-connected PACs. After all, PACs have

less influence on Members of Congress than their

national party, and individual contributors to PACs

even less so.
8

Amici urge this Court to adhere to well-developed

First Amendment jurisprudence in this area and

protect both an individual’s and a PAC’s First

Amendment rights against unjustified government

suppression. See, e.g., Buckley v. Valeo, 424 U.S. 1

(1976); Citizens United v. FEC, 558 U.S. 310 (2010). As

this Court has explained, the Constitution “demands at

least” that it “give the benefit of the doubt to speech,

not censorship.” WRTL, 551 U.S. at 482. 

ARGUMENT

I. POLITICAL ACTION COMMITTEES HAVE

FIRST AMENDMENT RIGHTS ENTITLED TO

THE HIGHEST CONSTITUTIONAL

PROTECTION 

A. PACs Play An Important Role In The

American Political System 

PACs emerged as a natural outgrowth of our timehonored, constitutionally protected national tradition

of collective advocacy. In 1944, the Congress of

Industrial Organizations established what is

recognized as the first PAC, as individual contributors

banded together with a single common goal: raising

money for President Franklin D. Roosevelt’s reelection.

See WHAT IS A PAC?, THE CENTER FOR RESPONSIVE

POLITICS, http://www.opensecrets.org/pacs/pacfaq.php.

In 1974, the first year for which FEC data regarding

PACs is available, 608 PACs were registered. See FED.

ELECTION COMM’N, PAC COUNT: 1974- PRESENT (Jan.

2013). Within ten years, the number of PACs had

multiplied significantly, and over 4,000 PACs existed,

spurring citizens’ involvement in the campaign process
9

and driving robust political debate. See id. Today,

thirty years later, just slightly over 5,000 PACs exist.

See id. Creating a PAC is an effective vehicle by which

individuals can engage in collective federal electoral

advocacy independently from campaigns and national

party committees. For two or more individuals, forming

a PAC is not just desirable but also mandatory: even

the smallest organization must register as a PAC with

the FEC within ten days of its contributions or

expenditures exceeding $1,000, and is subject to the

myriad of statutory provisions and FEC regulations

governing its operation. See 2 U.S.C. § 431; 11 C.F.R.

§ 100.5(a); § 102.1(d). Because “virtually every means

of communicating ideas in today’s mass society

requires the expenditure of money,” Buckley, 424 U.S.

at 19, spending this nominal amount is necessary for

any sort of successful political communication. Thus,

though the First Amendment extends strong protection

to “the freedom to join together in furtherance of

common political beliefs,” Tashjian v. Republican

Party, 479 U.S. 208, 214-215 (1986), PACs provide the

only means for likeminded individuals to do so

collectively outside of the parties and campaigns

themselves, and allow individuals to contribute to

candidates whom the PACs believe best deserves their

support. Because many individuals do not have the

time or resources to research the record and suitability

of candidates deserving support as do like-minded

PACs, such as those that support the environment or

those like amici that support limited government,

PACs serve a vital screening function in the electoral

process. 

As such, PACs have developed immeasurable

importance in American politics. With specific,
10

individualized viewpoints focusing on distinct but

diverse issues spanning the political spectrum, PACs

provide the means for all voters, regardless of party

identity (or lack thereof), to find common ground with

like-minded citizens and make their voices heard.

Permitting individuals to pool resources in this manner

has “undeniably enhanced” their ability to engage in

efficient, valuable advocacy. NAACP v. Ala. ex rel.

Patterson, 357 U.S. 449, 460 (1958). But aggregate

limits operate to substantially burden desired PAC

speech, stifling these unique voices so integral to

modern debate.

Unlike the cursory analysis the lower court gave the

constitutional issues presented in this case, this Court

must carefully and skeptically examine even the

slightest restriction on First Amendment activities.

The First Amendment is “premised on mistrust of

government power,” and this Court has been unwilling

to permit even minimal governmental infringement. Eu

v. San Francisco, 489 U.S. 214, 223 (1989) (explaining

that the First Amendment “has its fullest and most

urgent application” to free discussion about candidates

for political office). As an essential mechanism of our

system of self-governance, “political speech must

prevail against laws that would suppress it, whether by

design or inadvertence.” Citizens United, 558 U.S. at

339. 

“Discussion of public issues and debate on the

qualifications of candidates are integral to the

operation of the system of government established by

our Constitution.” Buckley, 424 U.S. at 14. Indeed, our

entire system of democracy “is unimaginable without

the ability of citizens to band together in promoting
11

among the electorate candidates who espouse their

political views.” Cal. Democratic Party v. Jones, 530

U.S. 567, 574 (2000). This is especially so when

ordinary citizens come together in voluntary

associations to advocate for particular issues they are

passionate about, taking into account the inherent

value of collective action for effective advocacy. NAACP

v. Ala., 357 U.S. at 460. Citizens joining in groups for

purposes of political advocacy is a practice “deeply

embedded in the American political process,” and its

inherent value is that “by collective effort individuals

can make their views known, when, individually, their

voices would be faint or lost.” Citizens Against Rent

Control v. City of Berkeley, 454 U.S. 290, 294 (1981). 

Like-minded Americans therefore join together not

only to add to the debate, but to do so in a meaningful,

effective manner. To be effective, such political speech

requires financial support. The general notion that

there is “too much money” in the aggregate in political

campaigns is a spurious one, let alone a compelling one

that can be presented as a valid means of preventing

quid pro quo corruption. If anything, amici submit that

funding of important political speech pales in

comparison to the hundreds of billions collectively

spent on advertising commercial products, such as

burgers and beer. See http://www.businessinsider.com/

the-35-companies-that-spent-1-billion-on-ads-in-2011-

2012-11?op=1. 

B. PACs Enjoy First Amendment Protection

The First Amendment extends strong protection not

only to individual contributors but also to group

associations, including PACs. See Citizens United, 558
12

U.S. at 342-43. That such associations are not “natural

persons” does not in any way diminish their rights to

engage in political speech and advocacy. See First Nat’l

Bank v. Bellotti, 435 U.S. 765, 776 (1978). In truth,

most PACs are small and much more closely resemble

the natural persons who organize and run them than

they resemble large corporations, such as the bank in

Bellotti. But the aggregate limits infringe on three

First Amendment protections: speech, assembly or

association, and the right to petition for redress of

grievances. 

The First Amendment guarantees that individuals

voluntarily associating through PACs (and being forced

by the FECA to register as such) are entitled to the

highest constitutional protection. But the aggregate

limits prevent PACs like amici from freely associating

with willing contributors. TPLF and other amici want

to accept contributions up to the non-corrupting

amount of $5,000, and pool these resources for political

advocacy purposes, including contributing to federal

candidates. See 2 U.S.C. § 441(a)(a)(1). Countless

putative speakers, such as Appellant McCutcheon,

similarly wish to associate with PACs like TPLF and

other amici, who share their viewpoints and can

uniquely express those distinct perspectives. But the

aggregate limits bar these speakers from contributing

more than the circumscribed amounts and

concomitantly prohibit TPLF, and all other PACs, from

accepting these speakers’ desired contributions. 2

U.S.C. § 441a(a)(3)(B). Because money is necessary for

effective political speech, Buckley, 424 U.S. at 19, the

aggregate limits circumscribe all PACs’ ability to speak

effectively. In today’s media markets, the cost to

candidates for getting their message out is ever
13

increasing, and candidates must necessarily rely on

contributions from both individuals and PACs to

communicate effectively. Similarly, PACs that also

want to have an impact must accept and spend money

to speak effectively. 

II. THE AGGREGATE LIMITS DO NOT SURVIVE

STRICT OR EXACTING SCRUTINY.

The lower court held and the FEC argued that the

strict scrutiny test does not apply to contributions, and

under the lower exacting scrutiny test, the aggregate

limits are constitutional. Amici, however, agree with

the Appellants that aggregate limits are more akin to

speech and therefore, the higher strict scrutiny should

apply. But in any event, the limits do not survive the

lower exacting scrutiny test and arguably do not pass

muster even under the rational basis test. 

A. Aggregate Limits Do Not Serve Any

Constitutionally Valid Government

Interest 

The government has a valid interest in preventing

quid pro quo corruption or its appearance. Buckley, 424

U.S. at 27, 45, 47. This Court has defined corruption

specifically and narrowly. “The hallmark of corruption

is the financial quid pro quo: dollars for political

favors.” NCPAC, 470 U.S. at 497 (emphasis added). The

government has a corresponding interest in preventing

circumvention of contribution limits, which Congress

ostensibly imposed to further a valid anticorruption

interest. See United States v. Danielczyk, 683 F.3d 611,

618 (4th Cir. 2012), cert. denied, 133 S. Ct. 1459 (2013);

Wis. Right to Life State Political Action Comm. v.
14

Barland, 664 F.3d 139, 153 (7th Cir. 2011). Under any

level of scrutiny, when a law abridges a speaker’s First

Amendment rights, the government bears the burden

of proving that a risk of corruption or its appearance

exists to render the restriction necessary. See id. 

The government cannot meet its burden either by

sweeping, unsubstantiated speculation or by

suggesting some lesser form of gratitude or access

qualifies. See Republican Nat’l Comm., 698 F. Supp. 2d

150, 158 (D.D.C. 2010). Nor can it meet its burden of

establishing a real quid pro quo corruption risk by

either fabricating such a risk or clinging to an outdated

rationale, broadly asserting that individuals can

circumvent contribution limits simply because it was

possible almost forty years ago.

1. The 1976 FECA Amendments Rectified

Any Circumvention Risk

Buckley held that only “large contributions” in

separate donations trigger a quid pro quo corruption

risk. 424 U.S. at 26. Because individuals can now

contribute only $5,000 to any PAC per year, there can

be no anti-corruption interest justifying aggregate

limits unless it is likely that these base limits can be

circumvented. See id. Such circumvention would entail

“contribut[ing] massive amounts of money to a

particular candidate through the use of unearmarked

contributions to political committees likely to

contribute to that candidate, or huge contributions to

the candidate’s political party.” Id. at 38. 

In 1976, Buckley considered and upheld the single

ceiling limit in effect at the time as a justifiable means
15

of preventing individuals from evading base

contribution limits. Buckley, 424 U.S. at 38. But the

Buckley Court was then considering a different

law—one under which circumvention was entirely

possible. See id. In direct response to the Buckley

Court’s circumvention concerns, Congress amended the

FECA in 1976, enacting a number of measures directly

targeted towards preventing the Court’s feared evasion

of contribution limits. Pub. L. 94-283, Title I, 90 Stat.

486 (May 11, 1976). The 1976 Amendments were thus

specifically intended to limit additional methods of

circumventing contribution limits —methods that the

prior version of FECA had not addressed. See generally

McCutcheon Brief at 40-43; RNC Brief at 19-23.

Accordingly, as even the lower court was forced to

acknowledge, the amended FECA “include[d] a number

of provisions designed to prevent evasion of the various

[base] limits.” McCutcheon v. FEC, 893 F. Supp. 2d

133, 136 (D.D.C. 2012) (three-judge court). Specifically,

to eliminate the Buckley Court’s apprehension

regarding “massive” contributions, the Amendments

implemented a new $5,000 per year limit on

contributions by a person to any PAC. Pub. L. 94-283,

Title I, 90 Stat. 486 (May 11, 1976); 2 U.S.C.

§ 441a(a)(1). The legislative history shows these new

contribution limits for PACs were meant to “restrict . . .

circumvent[ion]” of contribution limits, including by the

proliferation of PACs that “appear to be separate

entities pursuing their own ends, but are actually a

means for advancing a candidate’s campaign.” See

California Medical Association v. FEC, 453 U.S. 182,

198 n. 18 (1981) (“CalMed”).
16

As additional assurance against the potential for

circumvention, the 1976 Amendments added the

nonproliferation provisions—a prophylactic measure

designed specifically to prevent evasion of base

contribution limits. Id. Finally, the Amendments also

provided that all PACs sponsored by the same

organization or individual would henceforth be treated

as “affiliated” and held to a single contribution limit.

Pub. L. 94-283, Title I, 90 Stat. 486 (May 11, 1976); 2

U.S.C. § 441a(a)(5). 

Thus, the 1976 Amendments easily remedied any

potential for circumventing base contribution limits,

short of illegal earmarking. Quite simply, individuals

now cannot lawfully evade the aggregate limit for

PACs, and have been similarly unable to do so since

1976. The sole rationale for initially upholding the

aggregate limits in Buckley has simply disappeared.

Buckley at 38. Even the lower court readily conceded,

“it is clear that contributing a large amount of money

does not ipso facto implicate the government’s

anticorruption interest.” 893 F. Supp. 2d at 139. Thus,

the lower court dismissed the FEC’s argument that

large contributions “could easily exert a corruption

influence” or an “appearance of corruption” as

“sweep[ing] too broadly.” Id.

Nevertheless, perhaps because the government

failed to meet its burden of establishing a

circumvention risk on its own, the lower court was

forced to sua sponte offer several farfetched contingent

scenarios where circumvention of base limits could

somehow potentially occur by an individual

contributing a large single check to joint fundraising

party committees, which in turn could give collectively
17

their base limits to a single candidate. Id. at 140. But

even in this unrealistic scenario, the only harm the

lower court identified was the expression of “gratitude”

to the contributor. Id. However, as will be discussed

infra, this Court stated that eliminating such

“gratitude” is not a compelling governmental interest:

the only compelling government interest is eliminating

quid pro quo corruption which can occur only with

introducing or voting on legislation. Citizens United,

558 U.S. at 359-60. Regardless of the lower court’s

imaginative but dubious contingent scenarios, none of

them actually involved PACs—nor could they, given

the anti-conduit measures Congress enacted in its postBuckley 1976 Amendments. PACs cannot transfer

unlimited funds to other PACs.

Moreover, the government’s suggestion that

imposing aggregate limits on an individual’s

contributions to PACs is a justifiable means of

preventing the corruption of candidates is bereft of

logic, because there are no corresponding aggregate

limits on contributions from PACs to candidates. If

Congress did not see any potential for corruption with

unlimited aggregate base contributions by a single PAC

to federal candidates who exercise legislative powers,

there cannot be potential for corruption with unlimited

aggregate base contributions from individuals to PACs

that do not exercise legislative powers. Indeed, one is

hard-pressed to find a rational basis for this

distinction, let alone one that survives exacting or

strict scrutiny. 

The law also allows PACs and individuals to engage

in “bundling,” whereby smaller base limit contributions

to a candidate are solicited and amassed and then
18

turned over to the candidate in one lump sum under

the fiction that the huge contribution is not coming

from the bundler, but instead collectively from all the

small donors. Entertainers who have political agendas

are also free to engage in a form of bundling for their

favorite candidate. They perform at concerts where

individual attendees contribute a relatively small

amount but the total amount raised exceeds tens of

thousands of dollars, if not millions. For example, in

2008, Hillary Clinton raised $2.5 million at a single

concert by Elton John.3

 Surely, there is significant

“gratitude” bestowed on such bundlers and performers.

This reality further undermines the government’s

alleged compelling governmental interest in imposing

aggregate limits on individual contributions to PACs. 

2. Any Other Government Interest Is

Constitutionally Impermissible 

With the risk of corruption rectified and lawful

circumvention rendered impossible, the government no

longer has a valid interest sufficient to restrict

speakers’ First Amendment rights. See, e.g., Davis v.

FEC, 554 U.S. 724, 740-42 (2008); Citizens United, 130

S. Ct. at 904-11. Accordingly, the government’s interest

is most accurately framed as something less than quid

pro quo corruption, or an attempt to equalize speech.

But “contributors cannot be protected from the

possibility that others will make larger contributions.”

Citizens Against Rent Control at 295.

3

 Chris Cillizza, Elton John Raises $2.5 Million for HRC, Wash.

Post, April 10, 2008, http://voices.washingtonpost.com/thefix/fixca

m/fixcam-an-elton-john-tribute.html.
19

Because “[d]emocracy is premised on

responsiveness,” McConnell v. FEC, 540 U.S. 93, 297

(2003), corruption necessitates an actual exchange of a

“quid” for a “quo,” and requires far more than mere

receptiveness or even actual action. Thus, influence

over or access to elected officials does not amount to

corruption. Citizens United, 558 U.S. at 359. Similarly,

“[i]ngratiation and access. . . . are not corruption.” Id.

at 360. Nor is “gratitude” a “constitutionally cognizable

form of corruption.” Republican Nat’l Comm., 698 F.

Supp. 2d at 158; see also McCutcheon v. FEC, 893 F.

Supp. 2d at 139. Although the lower court

acknowledged “gratitude” is not enough to constrain

constitutionally protected speech, it offered no other

justifiable explanation—particularly relating to

PACs—as to why this Court should uphold the

aggregate limits. 

Elected officials would not likely reserve even

especial gratitude to an individual who contributed

$5,000 to various disparate PACs, assuming some of

these PACs, in turn, supported that official during his

or her campaign. Thus, even if an elected official

resolved to hunt down a prolific PAC contributor with

the aid of a forensic accountant—an exceedingly

difficult task compared to the easy identification of an

individual who spent millions of dollars in independent

expenditures and who surely deserves more

gratitude—and even if that official were determined to

“lay the wreath of gratitude” at the feet of such a

contributor—such gratitude still would not constitute

corruption. See id.

The lower court improperly rejected Appellants’

argument that the aggregate limits effectively limited
20

an individual’s contributions to only $85.29 per federal

candidate in 2006, a limit much lower than the $400

limit rejected by this Court in Randall v. Sorrell, 548

U.S. 230, 253 (2006). McCutcheon, 893 F. Supp. 2d 133,

141 n.5. The lower court admitted that such a scenario

may indeed be applicable if costly “direct mail were the

only means” to reach citizens. Id. The lower court

countered this argument by naively describing what it

called a “simple example” that building a website “to

reach a national audience is not any more expensive

than building one to reach citizens of a single state.” Id.

But simply building a website does not “reach”

anybody, let alone a national audience. Rather,

consumers, voters, and contributors are the ones that

must “reach out” to access the website for it to be

effective. And the public only becomes aware of such a

website is through an advertising campaign costing

money—with more money resulting in a more effective

campaign—that first “reaches out” to a target audience

to familiarize them with the website. Thus, even the

lower court’s own example intended to refute

Appellants’ constitutional argument is itself akin to a

costly direct mail campaign and falls flat. 

B. Since No Valid Anti-Corruption Interest

Exists, the Aggregate Limits Are Not

Closely Drawn And Serve As An

Unnecessary Prophylaxis

Ensuring political speech is most effectively

shielded from government intrusion often necessitates

applying “strict scrutiny” to the government restriction

imposed. Citizens United, 558 U.S. at 340. Even the

weaker “exacting scrutiny” traditionally reserved for

base contribution limits to candidates, however, is
21

nonetheless a “rigorous standard of review.” Buckley,

424 U.S. at 29. Thus, the Court may validate

contribution limits only if the limits are “closely drawn

to match a sufficiently important interest.” McConnell,

540 U.S. at 136 (quoting Fed. Election Comm’n v.

Beaumont, 539 U.S. 146, 162 (2003), overruled on other

grounds by Citizens United, 130 S. Ct. at 913). Only

one sufficiently important government interest

remains: preventing quid pro quo corruption or its

appearance. Buckley, 424 U.S. at 27. Similarly, this

Court may allow “‘significant interference’ with

protected rights of political association” but only if the

government demonstrates an anti-corruption interest

and employs means closely drawn to achieve that

interest. NAACP v. Button, 371 U.S. 415, 438 (1963).

“Unnecessary abridgment” of speech and associational

freedoms must be avoided. Buckley, 424 U.S. at 25. 

Here, the government has entirely failed to meet its

burden of establishing any risk of corruption or its

appearance necessary to justify the two aggregate

limits in question. By imposing a series of prophylactic

measures specifically aimed at preventing individuals

from evading contribution limits, the 1976

Amendments to the Federal Election Campaign Act

conclusively foreclosed any possibility of such

circumvention—the sole justification the Buckley Court

initially gave for upholding the overarching aggregate

limit. See Buckley, 424 U.S. 1 at 38. With the prior

circumvention risk rectified, the government’s anticorruption interest evaporates with respect to the

aggregate limits. Because a regulation cannot be

closely drawn to achieve such an invalid interest, the

dual aggregate limits cannot be upheld even under

lesser scrutiny. The aggregate limits thus serve no
22

valid purpose, and function only as an unnecessary,

constitutionally infirm “prophylaxis upon prophylaxis.”

WRTL, 551 U.S. at 478-79. Not only do the aggregate

limits fail the strict scrutiny test which should govern

this case, but also they fail the intermediate exacting

scrutiny test employed by the lower court, and

arguably fail the rational basis test.

III. RESTRICTIVE AGGREGATE LIMITS

DISPROPORTIONATELY IMPACT PACS

AND COMPOUND THE HARMS OF A

SKEWED CAMPAIGN FINANCE SYSTEM

A. The Aggregate Limits Hamper PAC

Speech And Decrease Competition Of

Ideas

The Founders built into our political system the

presumption that more speech is better and that

anyone or any group wishing to disseminate and

advocate ideas should be welcomed into the

“marketplace.” Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 390 (1969). First Amendment standards

require protecting rather than stifling debate over

political ideas. Citizens United, 558 U.S. at 327. Indeed,

our political system would lose its vibrancy if political

debate was not “uninhibited, robust, and wide-open.”

New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964). 

However, the government has stifled political

debate by restricting the ability of PAC speech relative

to other political speakers. The current speech

paradigm diminishes PACs’ unique views to a greater

degree than those of any other speakers. These
23

viewpoints are often unfiltered through the

Washington, D.C. political class, which tightly controls

the speech of parties and many candidates. The

aggregate limits place a particularly heavy burden on

PAC speech and political participation, because

Congress did not adjust PAC contribution limits for

inflation, as is the case for contributions to party and

candidate committees. As a result, the aggregate limits

stifle PAC speech in a particularly discriminatory and

unconstitutional manner. 

B. The Base Contribution Limits,

Unadjusted For Inflation, Only

Exacerbate The Harm

Overregulating contributions only perpetuates a

“new evil,” and as a result “a substantial amount of

political speech [is driven] underground.” See Nixon v.

Shrink Missouri, 528 U.S. 377, 408 (2000). The current

campaign finance regime additionally burdens PACs

with two separate unconstitutional aggregate limits

from individuals: the aggregate limit of $74,600 to all

non-candidate committees, of which there is subaggregate limit of $48,600 to PACs and state and local

party committees, the difference being $26,000 which

is allowed to be contributed to national party

committees. These dual limits hamper PACs by

restricting its base contribution limits that are not

indexed to account for inflation, exacerbating the harm

to PAC speech and association rights. In conjunction,

these factors serve to diminish the impact of PAC

voices.

The dual aggregate limits restrict a PAC’s ability to

accept even the already relatively low contributions.
24

Under the base contribution limits, an individual may

contribute up to $5,000 per year to any PAC, and

$10,000 per year to a state party committee. 2 U.S.C.

§ 441a(a)(1)(C)-(D). As noted, the biennial aggregate

limit on contributions to these non-candidate, nonnational-party committees is $48,600, 2 U.S.C.

§ 441a(a)(3)(B), and these contributions count against

the $74,600 biennial limit on contributions to noncandidate committees. 2 U.S.C. § 441a(a)(3)(B). Thus,

while the base contribution limits alone would permit

an individual to contribute $5,000 per year to all PACs

with whom that individual desires to associate, the two

aggregate limits operate to preemptively prohibit this:

under no circumstance can the would-be contributor

fully associate with more than nine PACs.4 

As a result of this restriction, the current system

effectively bars TPLF and other PACs from receiving

desired funds from, and associating with, willing

contributors. See also 2 U.S.C. § 441a(f) (prohibiting

PACs from knowingly receiving contributions in excess

of the aggregate limits). It necessarily follows that,

although PACs may make unlimited aggregate

contributions to candidates, see 2 U.S.C. § 441a(a)(1)-

(8), these PACs can contribute only those funds they

receive. But “virtually every means of communicating

ideas in today’s mass society requires the expenditure

4

 Assuming an individual refrained from contributing to state

party committees, the $48,600 limit still prohibits that individual

from contributing the full lawful amount of $5,000 to more than

nine PACs. See 2 U.S.C. § 441a(a)(3)(B). If an individual

contributed the maximum amount of $10,000 to a state party

committee, that individual would be limited to making full

contributions to only seven PACs. See id.
25

of money.” Buckley, 424 U.S. at 19. Thus, the aggregate

limits do not merely circumscribe individuals’ speech

and association rights, but also operate to limit PAC

spending, foreclosing PACs’ ability to contribute

unique, specific views to the public political discourse.

And this harm is compounded because the current

system does not index contribution limits to PACs to

account for inflation. As a result, PAC speech declines

biennially in proportion to that of candidates and

national parties. An individual may contribute a

maximum amount of $5,000 to any PAC in a calendar

year. 2 U.S.C. § 441a(a)(1)(C). Because this base limit

is not indexed for inflation, it has remained the same

since Congress first instituted the limit in 1976. See 2

U.S.C. § 441a(c)(1); Pub. L. 94-283, Title I, 90 Stat. 486

(May 11, 1976). In contrast, an individual may give

$2,600 to a candidate per election, and up to $32,400 to

a national party committee per calendar year. 2 U.S.C.

§ 441a(a)(1)(A)-(B). Since 2002, when Congress enacted

BCRA, these limits have been increased biennially to

account for inflation. 2 U.S.C. § 441a(c)(1). Thus, while

the current campaign finance system permits

candidates and national party committees to receive

more money to fund their desired speech, PACs receive

comparatively much less. There is no rational, let alone

compelling, government interest in this asymmetric

restriction. Congress may not value the speech of some

favored group over others but must instead treat all

speakers equally and allow the marketplace of ideas

(and ultimately the people) to decide the speech’s value.

“The identity of the speaker is not decisive in

determining whether speech is protected.” Pacific Gas

& Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1,

8 (1986) (plurality opinion). 
26

“By taking the right to speak from some and giving

it to others, the Government deprives the

disadvantaged person or class of the right to use speech

to strive to establish worth, standing, and respect for

the speaker’s voice.” Citizens United, 558 U.S. at 340-

41. Here, the government is following this

unconstitutional path by weakening PACs’ right to

speak to the benefit of other political speakers. As

described supra, PACs represent entirely unique

interests, and thus provide all individuals across the

political spectrum a means of banding together to

advocate distinct viewpoints. But the vibrancy of PAC

speech in the national political debate is handicapped

under this outdated standard. 

CONCLUSION

The Court should regard the aggregate limits with

respect to PACs as a constitutionally unjustifiable

blunderbuss broadly aimed at the vague, looming

specter of corruption from “too much” money in the

aggregate in the political system rather than as a law

narrowly tailored to address the impact of single

contributions from individuals to single candidates.

“The First Amendment does not permit the State to

sacrifice speech for efficiency.” Riley v Nat’l Fed. Of the

Blind, 487 U.S. 781, 795 (1988). Here, the aggregate

limits do not simply sacrifice speech for efficiency;

rather, the limits sacrifice valuable political speech and

association for no reason at all.
27

For all the foregoing reasons and those provided by

the Appellants, amici submit that this Court should

reverse the judgment of the three-judge district court.

Respectfully submitted,

Paul D. Kamenar

 Counsel of Record

Coolidge Reagan Foundation

1629 K Street, N.W., Suite 300

Washington, D.C. 20006

paul.kamenar@gmail.com

(202) 603-5397

Counsel for Amici Curiae

Dated: May 13, 2013