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No. 02-1740 

================================================================ 

In The 

Supreme Court of the United States ----♦-- -

VICTORIA JACKSON GRAY ADAMS, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The United States District Court, 

District Of Columbia 

----♦-- -

BRIEF OF APPELLANTS 

----♦-- -

JOHN C. BONIFAZ 

Counsel of Record 

BONITA P. TENNERIELLO 

LISA J. DANETZ 

BRENDA WRIGHT 

NATIONAL VOTING RIGHTS 

INSTITUTE 

27 School Street 

Suite 500 

Boston, MA 02108 

(617) 624-3900 

DAVID A. WILSON


AVI SAMUEL GARBOW


HALE AND DORR LLP 


1455 Pennsylvania Avenue, NW, 


10th Floor 

Washington, DC 20004 

(202) 942-8400 

Attorneys for Appellants 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

QUESTION PRESENTED 

Whether the District Court erred in ruling that a 

challenge to the increased “hard money” contribution 

limits found in sections 304, 307 and 319 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-

155, 116 Stat. 81, 97-100, 102-03, and 109-12 (codified as 

amended at 2 U.S.C. §§ 441a and 441a-1) is nonjusticiable 

due to lack of cognizable injury, even though the increases 

will confer preponderant electoral power on wealthy 

donors and will effectively exclude candidates and voters 

without access to networks of large donors from electoral 

participation, in violation of the equal protection guarantee incorporated by the due process clause of the Fifth 

Amendment to the United States Constitution. 
ii 

LIST OF PARTIES 

Actual parties to the proceedings in the United States 

District Court were: 

(1) Victoria Jackson Gray Adams, Carrie Bolton, 

Cynthia Brown, Derek Cressman, Victoria Fitzgerald, 

Anurada Joshi, Nancy Russell, Kate Seely-Kirk, Rose 

Taylor, Stephanie L. Wilson, California Public Interest 

Research Group, Massachusetts Public Interest Research 

Group, New Jersey Public Interest Research Group, 

United States Public Interest Research Group, Fannie Lou 

Hamer Project, and Association of Community Organizers 

for Reform Now, plaintiffs, appellants herein, 

(2) The United States of America, defendant, 

(3) The Federal Communications Commission, defendant, 

(4) The Federal Election Commission, defendant, 

(5) John Ashcroft, in his capacity as Attorney General of the United States, defendant, 

(6) Sen. John McCain, Sen. Russell Feingold, Rep. 

Christopher Shays, Rep. Martin Meehan, Sen. Olympia 

Snowe, and Sen. James Jeffords, defendant-intervenors. 
iii 

CORPORATE DISCLOSURE STATEMENT 

None of the appellants has a parent corporation, and 

no publicly held company owns 10% or more of the stock of 

any of the appellants. 
iv 

TABLE OF CONTENTS 

Page 

Table of Authorities .................................................... vi 


Opinions Below........................................................... 1 


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


Constitutional And Statutory Provisions Involved.... 2 


Statement of the Case ................................................ 2 


A.	 The predominance of the largest donors in 


the electoral process ........................................ 3 


B. 	 The electoral exclusion of voters and candi­


dates lacking personal wealth or access to


large networks of wealthy donors ................... 7 


C. The entrenchment of incumbents ................... 10 


D.	 The further exclusionary effects of the “million­


aire” provisions ................................................. 11


E. Proceedings in district court. .......................... 13 


Summary of Argument ............................................... 14 


Argument .................................................................... 17 


I. The BCRA Hard Money Contribution Limit 


Increases Violate the Constitutional Guaran­


tee of Equal Protection of the Law.................. 17 


A. 	 The marginalization of low- and moder­


ate-income voters violates equal protec­


tion principles established in the Court’s 


voting rights precedents ........................... 17 


B. 	The Court should act to preserve equal 


access to the electoral system through 


reasonable contribution limits ................. 23 

v 

TABLE OF CONTENTS – Continued 

Page 

C. No legitimate state interest justifies the


BCRA hard money increases .................... 27 


II. The Appellants’ Claims are Fully Justiciable.... 30 


Conclusion .................................................................. 34 

vi 

TABLE OF AUTHORITIES 

Page 

CASES: 

Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996) ....................... 33 


Arkansas Lousiana Gas Company v. City of Texar­


kana, 97 F.2d 179 (8th Cir. 1938) .................................. 33 


Anderson v. Celebrezze, 460 U.S. 780 (1983)..................... 20 


Baker v. Carr, 369 U.S. 186 (1962) ............................. 20, 23 


Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) ....... 32 


Buckley v. Valeo, 424 U.S. 1 (1976)........................ 24, 25, 30 


Bullock v. Carter, 405 U.S. 134 (1972) .......................passim 

Burson v. Freeman, 504 U.S. 191 (1992)..................... 22, 34 


Conlon v. Adamski, 77 F.2d 397 (D.C. Cir. 1935).............. 33 


Daggett v. Commission on Governmental Ethics and 


Practices, 205 F.3d 445 (1st Cir. 2000) .......................... 30 


Davis v. Bandemer, 478 U.S. 109 (1986)....................passim 

DeShaney v. Winnebago County Department of 


Services, 489 U.S. 189 (1989)......................................... 26 


FEC v. Mass Citizens for Life, Inc., 479 U.S. 238 


(1986) .............................................................................. 24 


Federal Election Commission v. Beaumont, No. 02-


403, 539 U.S. ___ (U.S. June 16, 2003) ......................... 24 


Frank v. City of Akron, 290 F.3d 813 (6th Cir. 2002), 


rehearing en banc denied, 303 F.3d 752 (6th Cir.


2002), cert. denied, City of Akron, Ohio v. Kilby, 


123 S.Ct. 968 (2003) ....................................................... 30 


Frost v. Corporation Comm’n, 278 U.S. 515 (1929) .......... 33 


Fulani v. League of Women Voters Educ. Fund, 882 


F.2d 621 (2d Cir. 1989) ................................................... 32 

vii 

TABLE OF AUTHORITIES – Continued 

Page 

Ga. State Conference of NAACP Branches v. Cox, 


183 F.3d. 1259 (11th Cir. 1999)...................................... 33 


Gormillion v. Lightfoot, 364 U.S. 339 (1960) .................... 21 


Gray v. Sanders, 372 U.S. 368 (1963).......................... 20, 23 


Harper v. Virginia Board of Elections, 383 U.S. 663


(1966) ...................................................... 14, 16, 18, 19, 23 


Hill v. Colorado, 530 U.S. 703 (2000).......................... 22, 34 


Int’l Assn. of Machinists v. FEC, 678 F.2d 1092 


(D.C. Cir. 1982)............................................................... 32 


Lubin v. Panish, 415 U.S. 709 (1974)........ 14, 15, 19, 23, 31 


Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ... 17, 31 


M.L.B. v. S.L.J., 519 U.S. 102 (1996) .......................... 14, 15 


Moore v. Ogilvie, 394 U.S. 814 (1969) ............................... 16 


NAACP, Los Angeles Branch v. Jones, 131 F.3d 


1317 (9th Cir. 1997)........................................................ 33 


National Black Police Association, Inc. v. Velde, 712


F.2d 569 (D.C. Cir. 1983)................................................ 19 


Nixon v. Shrink Missouri Government PAC, 528 


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


Reynolds v. Sims, 377 U.S. 533 (1964) .......................passim 

Schenck v. Pro-Choice Network of Western New 


York, 519 U.S. 357 (1997)......................................... 22, 34 


Schwieker v. Wilson, 450 U.S. 221 (1981) ................... 18, 19 


Vote Choice Inc. v. DiStefano, 4 F.3d 26 (1st Cir.


1993)................................................................................ 32 

viii 

TABLE OF AUTHORITIES – Continued 

Page 


Wesberry v. Sanders, 376 U.S. 1 (1964)................. 20, 23, 24 


Whitcomb v. Chavis, 403 U.S. 124 (1971) ......................... 21 


White v. Regester, 412 U.S. 755 (1973) .............................. 21 


Yick Wo v. Hopkins, 118 U.S. 356 (1886)........................... 18 


CONSTITUTION AND STATUTES: 

U.S. Const., Amend. V.................................... 2, 3, 13, 14, 34 


Bipartisan Campaign Finance Reform Act of 2002, 


Pub. L. No. 107-155 (2002)......................................passim


Title III 


§ 304, 116 Stat. 97........................................2, 11, 14, 34


§ 307, 116 Stat. 102................................................. 2, 34 


§ 319, 116 Stat. 109......................................2, 11, 14, 34


Title IV


§ 403(a)(3), 116 Stat. 81, 113-14 ................................... 1 


OTHER AUTHORITIES: 

Associated Press, “Millionaire’s Amendment” Could 


Help Burr in Senate Race, June 24, 2003, avail-


able at http://newsobserver.com/nc24hour/ncnews/ 


story/2643531p-2432009c.html...................................... 12 


Burt Neuborne, Toward a Democracy-Centered 


Reading of the First Amendment, 93 NW. U. L.


REV. 1055 (1999)............................................................. 26 

ix 

TABLE OF AUTHORITIES – Continued 

Page 

Burt Neuborne, THE VALUES OF CAMPAIGN FINANCE 

REFORM 12 (Brennan Center for Justice 1998), 

available at http://www.brennancenter.org/resources/ 

downloads/cfr2.pdf.......................................................... 30 

Center for Responsive Politics, JOHN R. EDWARDS: 

POLITICIAN PROFILE, available at http://www.open 

secrets. org/1998os/index/N00002283.htm .......................12 

Center for Responsive Politics, Press Release, 

“Gender Gap, GOP Edge in Small Donations 

Could Loom Big in 2004 Elections” (June 27, 

2003), available at http://www.opensecrets.org/ 

pressreleases/donordemog.asp......................................... 8 

Jim Morrill, Law May Level Political Funding 

Field, Charlotte Observer, June 24, 2003, available at http://www.charlotte.com/mld/observer/news/ 

6156128.htm ................................................................... 12 

Owen M. Fiss, Free Speech and Social Structure, 71 

IOWA L. REV. 1405 (1986) ............................................... 26 

Richard A. Oppel Jr., “Bush’s Heaviest Hitters to 

Be Called Rangers,” N.Y. TIMES, May 24, 2003, at 

A12 .................................................................................... 5 

Ronald Dworkin, Free Speech and the Dimensions 

of Democracy, in IF BUCKLEY FELL 63 (E. Joshua 

Rosenkranz ed., 1999) .............................................. 26, 27 

Samuel Issacharoff and Richard H. Pildes, Politics 

as Markets: Partisan Lockups of the Democratic 

Process, 50 STAN. L. REV. 643, 680-81 (1998)................ 21 

Sharon Theimer, “Bush Volunteer Fund-Raising 

Group Formed,” Associated Press, May 23, 2003, 

available at http://www.washingtonpost.com/ac2/ 

wp-dyn/A30660-2003May23.html.................................... 5 
x 

TABLE OF AUTHORITIES – Continued 

Page 

U.S. Census Bureau, INCOME 2001, at http://www.


census.gov/hhes/income/income01/inctab1.html................. 9 


U.S. PIRG, Press Release, “Presidential Candidates 


Getting More Money from Big Donors” (Apr. 16, 


2003), available at http://www.pirg.org/democracy/


democracy.asp?id2=9950.................................................. 4 

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1 

OPINIONS BELOW 

The opinions of the three-judge United States District 

Court for the District of Columbia are reprinted in the 

Supplemental Appendix to Jurisdictional Statements, 

Vols. I-V, filed by the appellants in McConnell et al. v. FEC 

et al., No. 02-1674, on behalf of all of the parties to the 

consolidated challenges to the Bipartisan Campaign 

Finance Reform Act of 2002, including the Adams appellants. 

----♦-- -

JURISDICTION 

The final judgment of the court below was entered on 

May 2, 2003. The Adams appellants, Victoria Jackson 

Gray Adams, Carrie Bolton, Cynthia Brown, Derek 

Cressman, Victoria Fitzgerald, Anurada Joshi, Nancy 

Russell, Kate Seely-Kirk, Rose Taylor, Stephanie L. 

Wilson, California Public Interest Research Group, 

Massachusetts Public Interest Research Group, New 

Jersey Public Interest Research Group, United States 

Public Interest Research Group, Fannie Lou Hamer 

Project, and Association Of Community Organizers For 

Reform Now, filed their notice of appeal on May 5, 2003. 

See Appendix to Jurisdictional Statement (“J.S. App.”) at 

1a. The jurisdiction of this court is invoked under the 

Bipartisan Campaign Finance Reform Act of 2002, Pub. L. 

No. 107-155, § 403(a)(3), 116 Stat. 81, 113-114 (2002). This 

Court noted probable jurisdiction on June 5, 2003. 

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2 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 

This constitutional challenge is brought pursuant to 

the due process clause of the Fifth Amendment to the U.S. 

Constitution, set forth at J.S. App. 3a. The challenged 

sections of the Bipartisan Campaign Finance Reform Act 

of 2002 are codified at 2 U.S.C. §§ 441a and 441a-1 and set 

forth beginning at J.S. App. 4a. 

----♦-- -

STATEMENT OF THE CASE 

This case arises out of an injury to the appellants’ 

fundamental right to vote caused by the radical increases 

in the limits on individual campaign contributions in the 

Bipartisan Campaign Finance Reform Act of 2002 (BCRA), 

§§ 304, 307 and 319, 116 Stat. 81, 97-100, 102-03, and 109-

12 (codified as amended at 2 U.S.C. §§ 441a and 441a-1). 

These provisions raise the amount that an individual may 

contribute to a federal campaign from $1,000 per election 

to $2,000 per election. BCRA § 307. The individual contribution limit is further raised in races where a candidate 

faces an opponent who has spent over a threshold amount 

in personal funds. Under such circumstances, a candidate 

for Representative may receive individual contributions of 

up to $3,000 per election, and a Senate candidate may 

receive individual contributions of up to $12,000 per 

election. BCRA §§ 304 and 319. 

The appellants are non-wealthy voters; organizations 

representing the interests of non-wealthy voters; and 

candidates lacking personal wealth and access to large 

networks of wealthy donors. They assert that the BCRA 

increases will enable the largest donors and candidates 
3 

with vast networks of wealthy contributors to dominate 

the electoral process. Candidates who are not favored by 

the highest donors will no longer have any meaningful 

chance of success. Voters supporting those candidates will 

be denied the effective exercise of the franchise. 

Thus, the BCRA hard money increases will deprive 

the appellants of the equal opportunity to participate in all 

integral aspects of the electoral process, in violation of the 

equal protection guarantee incorporated by the due process clause of the Fifth Amendment to the United States 

Constitution. Voluminous evidence supports the appellants’ claim of electoral exclusion. The ruling of the threejudge district court, that the appellants lack standing 

because there is no cognizable injury fairly traceable to the 

BCRA, Per Curiam Opinion, Supplemental Appendix to 

Jurisdictional Statements (“J.S. Supp. App.”) at 85sa; 

Opinion of Judge Henderson, J.S. Supp App. at 472sa476sa, fails to take adequate account of this evidence and 

therefore fails to weigh adequately the constitutional 

values at stake in this case. 

A.	 The predominance of the largest donors in 

the electoral process. 

The appellants presented substantial, uncontroverted 

evidence that the challenged provisions would give grossly 

disproportionate weight in the electoral process to a small 

portion of the population able to contribute the maximum 

amount permitted. Combined with the real-world practice 

of bundling contributions, the hard money increases will 

heavily favor elite donors and candidates with access to such 

donors. Only a tiny minority of the voting-age population, 

0.11 percent, gave maximum hard money contributions to 
4 

federal candidates in the 2000 election cycle, yet these 

contributions constituted nearly half of all individual 

funds raised. Adams Exh. 1, Declaration and Expert 

Report of Derek Cressman (“Cressman Decl.”), ¶¶ 4-5, J.S. 

App. 22a-23a. Major hard money donors are overwhelmingly white and male, and 81 percent have family incomes 

over $100,000. See Adams Exh. 2, Declaration and Expert 

Report of Prof. John Green, ¶ 3 (“Green Decl.”), J.S. App. 

31a. Among this group, those who say they will give more 

under increased limits are particularly wealthy, with 22 

percent having family incomes over $500,000. See Adams 

Exh. 2B, Clyde Wilcox & John Green, et al., Raising the 

Limits, Public Perspective, May/June 2002, at 11, 13, J.S. 

App. 39a. 

The challenged increases in BCRA will “result in 

increased giving by the elite pool of individual donors to 

federal campaigns,” Green Decl. ¶ 4, and would allow this 

elite group to dominate the electoral process. Indeed, 

analysis of FEC data for the first quarter of 2003 shows 

that 57 percent of all funds already raised by 2004 presidential candidates have come from donations higher than 

$1,000. See Press Release, U.S. PIRG, “Presidential Candidates Getting More Money from Big Donors” (Apr. 16, 

2003), available at http://www.pirg.org/democracy/democracy. 

asp?id2=9950. Expert witness Derek Cressman estimates 

that under the increased limits, the proportion of individual 

funds raised by federal candidates from donors giving 

under $200 will fall from 30 percent to 21-25 percent, while 

the percentage raised from donors giving the maximum 

amount allowed will increase from 46 percent to 55-63 

percent. Cressman Decl., ¶ 14, J.S. App. 27a. 

Candidates with networks of maximum donors are able 

to augment their fundraising advantage by encouraging 
5 

these donors to bundle (i.e., solicit or facilitate) maximum 

contributions from business associates, friends and family 

members. Adams Exh. 3, Declaration and Expert Report of 

Craig McDonald (“McDonald Decl.”), ¶ 5, J.S. App. 47a. 

The BCRA hard money increases will multiply the 

amounts bundled by well-connected donors, giving these 

donors grossly disproportionate electoral power. Id., ¶ 15. 

Candidates lacking networks of large donors will be 

effectively excluded from any meaningful participation in 

the process. 

The Bush Pioneer program – the hard money bundling operation employed in the 2000 election cycle by the 

George W. Bush Presidential Exploratory Committee, Inc., 

and its successor organization, the George W. Bush For 

President Committee – exemplifies the disproportionate 

electoral influence that bundlers enjoy. Each Pioneer was 

responsible for gathering at least $100,000 in hard money 

contributions, and the 212 Pioneers channeled more than 

$22 million to the 2000 Bush presidential campaign. Id., 

¶ 13, J.S. App. 53a. 

Under the BCRA increases, this small group could 

have potentially collected twice as much from the same 

number of donors. In fact, press accounts indicate that the 

Bush campaign for 2004 is asking a new group, called the 

“Rangers,” to bundle at least $200,000 each.1 

1 See Sharon Theimer, “Bush Volunteer Fund-Raising Group 

Formed,” Associated Press, May 23, 2003, available at http://www. 

washingtonpost.com/ac2/wp-dyn/A30660-2003May23.html; Richard A. 

Oppel Jr., “Bush’s Heaviest Hitters to Be Called Rangers,” N.Y. TIMES, 

May 24, 2003, at A12. 
6 

The Pioneer program also demonstrates that those 

who bundle contributions often do so with the aim of 

gaining enhanced access and influence with elected 

officials. The Pioneers – who were comprised largely of 

corporate executives and lobbyists, McDonald Declaration, 

¶ 10, J.S. App. 50a-51a – were each assigned a tracking 

number so that the Bush Campaign could record the total 

amount of money raised by each individual. Id. ¶ 15; 

Deposition of John L. Oliver III, 30(b)(6) witness on behalf 

of Bush for President, Inc., 46, line 10 to 57, line 11, 106, 

lines 10-16. Joint Appendix (“Jt. App.”) at 977-985.2 See 

also May 27, 1999 letter from Bush Pioneer Thomas R. 

Kuhn, Adams Exh. 6, Jt. App. at 2116-2117. Each Pioneer, 

therefore, was “credited” with delivering at least $100,000 

to the campaign, despite the nominal hard money limit of 

2 The relevant text of this letter reads as follows: “As you know, a 

very important part of the campaign’s outreach to the business community is the use of tracking numbers for contributions. Both Don Evans 

[the chair of the campaign] and Jack Oliver [the campaign’s national 

finance director] have stressed the importance of having our industry 

incorporate the #1178 tracking number in your fundraising efforts. 

LISTING YOUR INDUSTRY’S CODE DOES NOT PREVENT YOU, 

ANY OF YOUR INDIVIDUAL SOLICITORS OR YOUR STATE 

FROM RECEIVING CREDIT FOR SOLICITING A CONTRIBUTION. IT DOES ENSURE THAT OUR INDUSTRY IS CREDITED, 

AND THAT YOUR PROGRESS IS LISTED AMONG THE OTHER 

BUSINESS/INDUSTRY SECTORS.” Adams Exh. 6, Jt. App. at 2117 

(emphasis in original). Kuhn sent a letter with similar language on 

May 26, 1999, to “Association Executives for Bush.” Adams Exh. 6, Jt. 

App. at 2118-2119. 
7 

$1,000. As wealthy individuals such as the Pioneers are 

increasingly able to determine electoral outcomes under 

BCRA, they will also expand their ability to influence 

legislative outcomes. A wealth of evidence documents the 

disproportionate access and influence that maximum 

donors and bundlers enjoy in Congress.3

 “The increased 

individual contribution limits will exacerbate the disproportionate access and influence that the largest donors 

enjoy.” Simon Decl., ¶ 10, J.S. App. 74a-75a. 

B.	 The electoral exclusion of voters and candidates 

lacking personal wealth or access to large networks of wealthy donors. 

Under the BCRA hard money limit increases, candidates without access to networks of wealthy donors will be 

effectively excluded from seeking political office, as the 

3 See Adams Exh. 18, Declaration of Pat Williams, former Member 

of Congress from Montana (“Williams Decl.”), ¶ 4, J.S. App. 77a (“There 

is no doubt in my mind that those giving the largest contributions 

expect preferential access and disproportionate influence”); Adams Exh. 

17, Declaration of Paul Simon, former U.S. Senator from Illinois 

(“Simon Decl.”), ¶ 4, J.S. App. 73a (“No member of Congress, not even 

the most scrupulous, is unaware of his or her largest contributors, and 

not even the most scrupulous members will ignore them.”); Deposition 

of Representative Earl F. Hilliard, Sept. 5, 2002, 68, lines 18-20, 86, 

lines 9-15, 95, lines 9-11, Jt. App. at 890-893; Deposition of Representative Bennie G. Thompson, Sept. 19, 2002, 68, lines 16-22, Jt. App. at 

1039. Fact witnesses for the defendants make the same point. See 

Adams Exh. 33, Declaration of Senator Dale Bumpers, former U.S. 

Senator from Arkansas, ¶ 14, J.S. App. 137a (discussing hard and soft 

money donors); Deposition of Arnold Hiatt, major hard money donor, 

Sept. 26, 2002, 102, lines 20-25, 104, lines 5-19, Jt. App. at 878. See also 

Stratmann Decl., ¶ 13-30, J.S. App. 60a-67a (documenting evidence 

that campaign contributions affect legislators’ voting behavior). 
8 

war chests of well-connected candidates grow and the 

financial bar rises far beyond the reach of those lacking 

such connections. The voices of candidates lacking access 

to large numbers of wealthy donors will be driven 

“beneath the level of notice,” Nixon v. Shrink Missouri 

Gov’t PAC, 528 U.S. 377, 397 (2000), and low- and moderate- income voters will lose their ability to have a meaningful impact on the electoral process. 

Candidates with a financial advantage nearly always 

win elections; such candidates won congressional office 94 

percent of the time in the 2000 general election, Cressman 

Decl. ¶ 2, J.S. App. 22a, and the same statistic held true in 

the 2002 Congressional election. See Press Release, Center 

for Responsive Politics, “Gender Gap, GOP Edge in Small 

Donations Could Loom Big in 2004 Elections” (June 27, 

2003), available at http://www.opensecrets.org/pressreleases/ 

donor demog.asp. These realities are confirmed by the 

candidate appellants and others who have previously run 

for federal office and are considering doing so again, but 

who testified that the BCRA increases would deter them 

from future candidacies because they lack access to large 

networks of maximum donors.4

 Senator Russell Feingold, a 

defendant-intervenor and a co-sponsor of BCRA, admitted 

that the hard money increases will likely further enable 

certain candidates to build up campaign war chests, 

“potentially discourag[ing] some people from running” for 

4 See Adams Exh. 19, Declaration of Dr. Thomas A. Caiazzo 

(“Caiazzo Decl.”), J.S. App. 79a; Adams Exh. 20, Declaration of Gail 

Crook, (“Crook Decl.”), J.S. App. 83a; Adams Exh. 21, Declaration of 

Victor Morales (“Morales Decl.”), J.S. App. 88a; Adams Exh. 22, 

Declaration of Cynthia Brown ( “Brown Decl.”), J.S. App. 93a; Adams 

Exh. 23, Declaration of Ted Glick (“Glick Decl.”), J.S. App. 96a. 
9 

federal office. Deposition of Russell Feingold (“Feingold 

Deposition”), Sept. 9, 2002, 264, line 14 to 265, line 3, Jt. 

App. at 858. 

Voters express themselves in the electoral process 

primarily through supporting the candidates of their 

choice. Thus when candidates lacking access to large 

donors are eliminated from competition, those who would 

support them are effectively deprived of the right to vote. 

As voter-appellant Carrie Bolton testified, under the 

BCRA increases supporting a candidate lacking large 

donors “would be like fighting a fire with a cup of water.” 

Adams Exh. 25, Declaration of Carrie Bolton (“Bolton 

Decl.”), ¶ 11, J.S. App. 105a-6a. 

The voter-appellants have testified that they cannot 

afford to make large campaign contributions. Indeed, most 

Americans are unable to make contributions anywhere 

near the BCRA limit. A $2,000 contribution would represent nearly five percent of the median U.S. family income, 

which U.S. Census Bureau data puts at $42,228. See U.S. 

Census Bureau, INCOME 2001, at http://www.census.gov/ 

hhes/income/income01/inctab1.html (last visited July 1, 

2003). The $12,000 limit applicable in some races under 

the millionaire provisions would represent over 28 percent 

of median income. 

Because the hard money increases will deprive the 

voter-appellants of the equal opportunity to elect the 

candidates of their choice, these appellants have testified 

that the increases will make their vote less meaningful.5 

5 See Adams Exh. 24, Declaration of Victoria Jackson Gray 

Adams (“Adams Decl.”) ¶ 5, J.S. App. 101a (“The largest donors get 

more attention, and when the ceiling is raised the voices of small 

(Continued on following page) 
10 

As Bolton testified, “The increases in the hard money 

contribution limits make it no longer conceivable that I 

can access the political process. They undermine the 

meaning and value of my vote.” Bolton Decl., ¶ 12, J.S. 

App. 106a. Representatives Earl F. Hilliard and Bennie 

Thompson testified that the increases will harm the ability 

of low- and moderate-income communities, and communities of color, to elect the representatives of their choice.6 

C. The entrenchment of incumbents. 

By aiding candidates favored by the wealthy, incumbent members of Congress dealt themselves a powerful 

advantage, for incumbents most often are the favorites of 

the wealthy. The uncontroverted evidence shows that 

BCRA’s hard money increases will benefit incumbents, 

who enjoy greater access to large donors than do challenger candidates. See Adams Exh. 4, Declaration and 

Expert Report of Professor Thomas Stratmann (“Stratmann Decl.”), ¶¶ 5-12, J.S. App. 57a-60a; Cressman Decl., 

contributors and voters like myself will be lost.”); Adams Exh. 30, 

Declaration of Chris Saffert, ¶ 18, J.S. App. 125a-126a (“The effect of 

the contribution limit increases will be to drown out the voices of 

people from low and moderate-income communities . . . ”); Adams 

Exh. 26, Declaration of Daryl Irland (“Irland Decl.”), J.S. App. 107a; 

Adams Exh. 27, Declaration of Anuradha Joshi (“Joshi Decl.”), J.S. App. 

110a; Adams Exh. 28, Declaration of Howard Lipoff (“Lipoff Decl.”), J.S. 

App. 113a; Adams Exh. 29, Declaration of Nancy Russell (“Russell 

Decl.”), J.S. App. 116a; Adams Exh. 31, Declaration of Kate Seely-Kirk 

(“Seely-Kirk Decl.”), J.S. App. 127a; Adams Exh. 32, Declaration of 

Stephanie L. Wilson (“Wilson Decl.”), J.S. App. 130a. 

6 See Thompson Deposition, 87, lines 9-12, Jt. App. at 1040 (“[B]y 

doubling the hard money contribution, you price low and moderate 

communities out of the market for electoral participation”); Hilliard 

Deposition, 103, lines 4-7, Jt. App. at 94. 
11 

¶ 19. J.S. App. 29a. A leading co-sponsor of the BCRA, 

Defendant-Intervenor Senator Feingold, has admitted 

that the hard money increases will benefit incumbent 

candidates facing challengers without access to wealth. 

Feingold Deposition 260, lines 7-8, Jt. App. at 857. 

Incumbents’ advantages in raising maximum contributions are particularly pronounced. An analysis of Federal Election Commission data from the 2000 election 

cycle finds, “Senate incumbents in 2000 raised, on average, nearly three times as much as their challengers did 

from donors of $1,000 or more: $1.8 million v. $650,000. 

House incumbents in 2000 raised more than twice as 

much from donors of $1,000 or more as their challengers, 

on average: $178,000 v. $85,000.” Adams Exh. 35, “Why 

the Battle over Hard Money Matters: Hard Facts on Hard 

Money,” Public Campaign, J.S. App. 152a-153a. By raising 

the hard money limit, Congress has exacerbated the 

advantage incumbents already have over challengers to an 

intolerable degree. 

D.	 The further exclusionary effects of the “millionaire” provisions. 

The burdens on non-wealthy candidates described 

above will increase exponentially in races where a selffunded candidate triggers provisions allowing opponents 

to raise funds in increments of $3,000 per election in 

House races, and up to $12,000 per election in Senate 

races. See BCRA §§ 304, 319. The record demonstrates 

that when one candidate takes advantage of these “millionaire” provisions to multiply maximum contributions, a 

competing candidate whose supporters cannot make large 

donations will be buried in her opponents’ cash. Candidates 
12 

who have in the past faced wealthy, self-funded opponents 

testified that the burden of simultaneously confronting a 

second campaign with vast infusions of cash from wealthy 

donors would make it impossible for them to compete. 

For example, appellant Cynthia Brown, a candidate 

for the United States Senate from North Carolina in the 

2002 Democratic Primary, testified that one of her opponents was a millionaire who “contributed enormous sums 

of money to his own campaign” while another opponent 

“raised large sums of money from wealthy contributors,” 

Brown Decl., ¶ 5, J.S. App. 94a; that her own contributions 

averaged approximately $25, id. ¶ 4; and that she would 

consider running again for the U.S. Senate, but the BCRA 

millionaire provisions would “seriously discourage” her 

from participating. Id. ¶ 7, J.S. App. 94a-95a.7

 She stated: 

7 Neither Ms. Brown nor any of the other candidates challenging 

various provisions of the BCRA in the consolidated litigation could have 

demonstrated complete certainty that they would compete in the 2004 

elections, given that the lawsuits were filed during the 2002 elections. 

However, there is a clear likelihood that if Ms. Brown were to run for 

the Senate in North Carolina in 2004 she would be in a race where the 

millionaire amendment provisions apply. Incumbent Senator John 

Edwards spent $6.15 million of his own money to win election in 1998, see 

Center for Responsive Politics, JOHN R. EDWARDS: POLITICIAN PROFILE, 

available at http://www.opensecrets.org/1998os/index/N00002283.htm, and 

he will face re-election in 2004. North Carolina press accounts have 

already noted that the millionaire provision will likely be triggered 

even if Edwards does not run, since in that event Charlotte investment 

banker Erskine Bowles – who spent $6.8 million in his 2002 Senate bid 

– reportedly plans to enter the race. See Associated Press, “Millionaire’s 

Amendment” Could Help Burr in Senate Race, June 24, 2003, available 

at http://newsobserver.com/nc24hour/ncnews/story/2643531p-2432009c. 

html; Jim Morrill, Law May Level Political Funding Field, Charlotte 

Observer, June 24, 2003, available at http:/www.charlotte.com/mld/ 

observer/news/6156128.htm. Another entrant in the primary, U.S. Rep. 

(Continued on following page) 
13 

If I were to run for the U.S. Senate again from 

North Carolina, I would likely face again a millionaire opponent. Under the increases in the 

hard money contribution limits, my other opponents would be free to raise up to $12,000 per individual per election. The people I know can 

hardly afford to contribute twenty-five dollars, 

let alone $12,000. There is no way that any candidate like me can compete under these new conditions. These increases in the hard money 

contribution limits would effectively eliminate 

any future campaign I might hope to wage for 

the U.S. Senate. 

Id., ¶¶ 8-9, J.S. App. 95a.8 See also Glick Decl., ¶ 6, J.S. 

App. 98a (“It is impossible to participate facing that 

tremendous disparity in resources. I just do not run in the 

circles of people who can contribute $12,000.”). 

E. Proceedings in district court. 

The Adams plaintiffs filed a lawsuit in the U.S. 

District Court for the District of Columbia on May 7, 2002. 

Count I alleged that the increases in the individual hard 

money contribution limits contained in BCRA Sec. 307 

violate the equal protection guarantee incorporated by the 

due process clause of the Fifth Amendment to the U.S. 

Constitution. Count II alleged that the BCRA provisions 

Richard Burr, has reportedly begun fundraising and would take 

advantage of the higher contribution limits if the millionaire amendment were triggered. See id. 

8 Appellant Carrie Bolton, a North Carolina voter supporting Ms. 

Brown, also testified regarding her desire to support Ms. Brown in 

future elections. Bolton Decl., J.S. App. 103a-106a. 
----------------------------- ------------------------------

14 

providing for further contribution increases in response to 

expenditures from personal funds (the “millionaire” 

provisions), BCRA §§ 304 and 319, similarly violate the 

Fifth Amendment. 

The case was consolidated with ten other challenges 

to various provisions of the BCRA and assigned to a threejudge panel. A two-day trial based on recorded testimony 

was held on December 4 and 5, 2002. The defendants and 

defendant-intervenors presented no evidence counter to 

that presented by the Adams plaintiffs. Rather, they 

argued that the plaintiffs’ injuries were insufficient to 

confer standing. See Defendants’ Opening Brief (“Def. Br.”) 

at 208-209. The three-judge District Court issued a final 

judgment on May 2, 2003 dismissing the claims as nonjusticiable. See Per Curiam Opinion, J.S. Supp. App. at 85sa; 

Opinion of Judge Henderson, J.S. Supp App. at 472sa476sa. 

----♦-- -

SUMMARY OF ARGUMENT 

This Court has long held that “[t]he basic right to 

participate in political processes as voters and candidates 

cannot be limited to those who can pay for a license.” 

M.L.B. v. S.L.J., 519 U.S. 102, 124 & n.14 (1996) (citing 

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) 

(invalidating, as a denial of equal protection, an annual 

$1.50 poll tax imposed by Virginia on all residents over 

21); Bullock v. Carter, 405 U.S. 134 (1972) (invalidating 

Texas scheme under which candidates for local office had 

to pay fees as high as $8,900 to get on the ballot); Lubin v. 

Panish, 415 U.S. 709 (1974) (invalidating California 
15 

statute requiring payment of a ballot-access fee fixed at a 

percentage of the salary for the office sought)). 

The hard money increases in BCRA bar non-wealthy 

voters and candidates from exercising effectively this 

“basic right to participate in [the] political process[ ].” 

M.L.B., 519 U.S. at 124. These increases exclude low- and 

moderate-income voters from effective exercise of the 

franchise as tangibly as did the mandatory candidate 

filing fees at issue in Bullock and Lubin. By raising 

contribution limits to levels at which only upper-income 

voters can afford to give, Congress has functionally guaranteed to that narrow segment of the electorate the power 

to determine which candidates are able to mount viable 

campaigns long before any ballots are cast. While nonwealthy voters may now be able to pull the lever on 

Election Day, BCRA’s hard money increases prevent them 

from having “an equally effective voice.” Reynolds v. Sims, 

377 U.S. 533, 565 (1964) (disparities in voting strength 

based on population of electoral district violate equal 

protection clause of Fourteenth Amendment). Similarly, 

the hard money increases prevent candidates lacking 

access to elite donor networks from competing meaningfully for federal office, “thereby tending to limit the field of 

candidates from which voters might choose.” Bullock, 405 

U.S. at 143. These increases “fall[ ] with unequal weight 

on voters, as well as candidates, according to their economic status.” Id. at 144. 

Congress may not raise contribution limits to a level 

which debases and dilutes the fundamental right to vote. 

By enabling elite donors to dominate the electoral process, 

Congress has created two distinct classes of voters: those 

who, as a result of the hard money increases, can employ 
16 

vast networks of wealth in support of the candidates of 

their choice and those who cannot. The Constitution 

prohibits the State from unlawfully weighting a citizen’s 

vote in this way. See Reynolds, 377 U.S. at 555 (“[T]he 

right of suffrage can be denied by a debasement or dilution 

of the weight of a citizen’s vote just as effectively as by 

wholly prohibiting the free exercise of the franchise.”). See 

also Moore v. Ogilvie, 394 U.S. 814, 819 (1969) (“The idea 

that one group can be granted greater voting strength 

than another is hostile to the one man, one vote basis of 

our representative government.”). 

In Harper, this Court stated that “once the franchise 

is granted to the electorate, lines may not be drawn which 

are inconsistent with the Equal Protection Clause of the 

Fourteenth Amendment.” Harper, 383 U.S. at 665. By 

doubling the hard money contribution limit for all federal 

races and by multiplying it even further for races involving self-funded candidates, Congress has redrawn the 

lines in a manner which undermines the franchise. While 

Congress does not have the authority to enact a contribution limit which is “so radical in effect as to render political association ineffective,” Nixon v. Shrink Missouri Gov’t 

PAC, 528 U.S. 377, 397 (2000), neither does it have the 

authority to enact a contribution limit which allows elite 

donors to achieve a stranglehold over the electoral process, 

locking out the voices of ordinary voters. 

There is no legitimate state interest that justifies the 

increased limits. The increases cannot be justified by 

inflation, as fundraising under the previous $1,000 limit 

far outpaced inflation, and defenders of the BCRA increases admitted that they had no difficulties fundraising 

under the previous limits. The record also demonstrates 
----------------------------- ------------------------------

17 

that the increased limits will decrease, rather than increase, electoral competition, because incumbents possess 

far more extensive networks of maximum donors. 

Because the appellants have stated a legally cognizable injury that is fairly traceable to the challenged provisions, and will be redressed by invalidation of those 

provisions, their claims are fully justiciable. See Lujan v. 

Defenders of Wildlife, 504 U.S. 555 (1992). The record 

discloses the imminent, particularized harm that the 

appellants will suffer from the increases. The electoral 

exclusion of which they complain is a direct result of the 

BCRA increases, and therefore fairly traceable to the 

enactment of those provisions. Because the appellants 

seek to preserve their ability to exercise effectively their 

basic right in the political process, rather than absolute 

equality in electoral influence, a return to the previous 

hard money limits will redress their injury. 

----♦-- -

ARGUMENT 

I. 	 THE BCRA HARD MONEY CONTRIBUTION 

LIMIT INCREASES VIOLATE THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAW. 

A. The marginalization of low- and moderate-income voters violates equal protection principles established in the Court’s 

voting rights precedents. 

Victoria Jackson Gray Adams has been an active 

advocate for voting rights for over forty years, and was a 

founder of the Mississippi Freedom Democratic Party, 

which challenged the seating of the state’s all-white delegation to the 1964 Democratic Party national convention. 
18 

Adams Decl., ¶ 1, JS App. 100a. Yet despite her lifelong 

commitment to electoral democracy, she testified that the 

BCRA increases will “deprive me of full participation and 

discourage me from involvement with electoral politics.” 

Id. ¶ 3, JS App. 101a. This is a sad irony, given that the 

asserted rationale behind the BCRA’s overall reform of 

campaign finance includes “restoring Americans’ faith in 

the electoral process and decreasing public cynicism about 

our system of government,” along with preventing corruption and the appearance of corruption. See Adams Exh. 15, 

Intervenors’ Responses to Contention Interrogatories, 

Responses to McConnell Interrogatory No. 1 and Adams 

Interrogatory No. 1., 2-5, Jt. App. at 1738. Far from 

serving these admirable goals, the BCRA hard money 

increases will accomplish the inverse, convincing low- and 

moderate-income citizens that their voices are meaningless compared with the few who are able to channel tens or 

hundreds of thousands of dollars to their favored candidates. The disparities between electoral “haves” and 

“have-nots” will deepen to a chasm, and those without 

wealth will be relegated to second-class citizenry, denied a 

“fundamental political right . . . preservative of all rights.” 

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). 

The Constitution must and does provide a remedy. 

This Court has long held that exclusion from the electoral 

process based on economic status violates equal protection 

principles,9 see Harper v. Virginia Board of Elections, 383 

9 The Fourteenth Amendment case law cited herein applies with 

equal force to a violation of equal protection committed through federal 

law. “The Fifth Amendment imposes on the Federal Government the 

same standard required of state legislation by the Equal Protection 

Clause of the Fourteenth Amendment.” Schwieker v. Wilson, 450 U.S. 

(Continued on following page) 
19 

U.S. 663 (1966) (poll tax violates equal protection clause of 

Fourteenth Amendment); Bullock v. Carter, 405 U.S. 134 

(1972) (candidate filing fees violate equal protection 

clause); Lubin v. Panish, 415 U.S. 709 (1974) (same), and 

that all citizens are entitled to an equally meaningful vote. 

See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (disparities 

in voting strength based on population of electoral district 

violate equal protection clause of Fourteenth Amendment); 

Davis v. Bandemer, 478 U.S. 109 (1986) (dilution of voting 

strength is justiciable under the equal protection clause). 

The appellants seek to enforce the very rights guaranteed 

by these cases: an equal ability to participate in the 

electoral process regardless of economic status, and an 

equally meaningful vote. 

Like the mandatory candidate filing fee, the hard 

money contribution increases preserve the right to vote 

but deprive the vote of meaning. The challenged statutes 

in Bullock and Lubin did not directly abridge the right to 

vote, but rather denied non-wealthy voters a meaningful 

vote, by preventing them from voting for the candidates of 

their choice. In striking such fees as a violation of the 

equal protection clause of the Fourteenth Amendment, the 

Court observed that candidates “lacking both personal 

wealth and affluent backers are in every practical sense” 

excluded from the electoral process by mandatory filing 

fees, and that “[t]he effect of this exclusionary mechanism 

on voters is neither incidental nor remote.” Bullock, 405 

U.S. at 143-144. See also Lubin, 415 U.S. at 716 (rights of 

excluded candidates are “intertwined with the rights of 

221, 22 n.6 (1981); see also National Black Police Association, Inc. v. 

Velde, 712 F.2d 569, 580 (D.C. Cir. 1983). 
20 

voters”); Anderson v. Celebrezze, 460 U.S. 780, 786-787 

(1983) (striking early candidate filing deadline which 

unconstitutionally burdened rights of voters supporting 

independent candidate). The exclusion of voters and their 

preferred candidates was de facto rather than de jure; 

those lacking wealth were not literally but “in every 

practical sense” excluded from elections. Bullock, 405 U.S. 

at 143-144 (emphasis added). 

Similarly, the apportionment cases recognize that “the 

right of suffrage can be denied by a debasement or dilution 

of the weight of a citizen’s vote just as effectively as by 

wholly prohibiting the free exercise of the franchise.” 

Reynolds, 377 U.S. at 555. See also Baker v. Carr, 369 U.S. 

186 (1962) (vote dilution claim is justiciable); Gray v. 

Sanders, 372 U.S. 368 (1963) (violation of equal protection 

and due process clauses of Fourteenth Amendment, and of 

Seventeenth Amendment, to weight rural votes more 

heavily than urban votes); Wesberry v. Sanders, 376 U.S. 1 

(1964) (vote dilution violates Art. I, § 2); Davis, 478 U.S. 

109 (dilution of voting strength of political group is justiciable under equal protection clause). 

Reynolds held that state legislative apportionment 

must be based on population; the Alabama legislative 

apportionment that was held unconstitutional gave voters 

in some Senate districts up to 16 times more weight than 

others, and in some House districts the imbalance was 

about 41-to-1. 377 U.S. at 545. Approximately 25 percent 

of the population had the power to elect a majority of the 

state’s Senate and House. Id. In holding these disparities a 

violation of the equal protection clause, the Court declared 

that each citizen is entitled to “an equally effective voice” 

in elections, as “[m]odern and viable state government 

needs, and the Constitution demands, no less.” Reynolds, 
21 

377 U.S. at 565. The disparities in electoral power in this 

case are no less glaring. The appellants’ expert witness 

Derek Cressman testified that with the hard money 

increases, maximum donors – who in recent elections have 

constituted just 0.11 percent of the voting age population – 

will provide between 55-65 percent of all individual funds 

to federal candidates. Cressman Decl., ¶¶ 4, 15, J.S. App. 

22a-23a, 27a. Clearly, then, low- and moderate-income 

voters will not have an equally effective voice in elections. 

The appellants do not contend that the Constitution 

requires absolute equality in electoral influence, and 

indeed disparities of electoral power have existed under 

the $1,000 pre-BCRA contribution limit. However, with the 

BCRA increases those disparities will rise to a level that 

denies the appellants “an equally effective voice,” Reynolds, 377 U.S. at 565, in elections, and indeed will drive 

their voices “beneath the level of notice.” Nixon v. Shrink 

Missouri Gov’t PAC, 528 U.S. 377, 397 (2000). The fact 

that the appellants’ injury is a matter of degree does not 

make it less of a constitutional violation, as is clear from 

the apportionment cases.10 For example, Reynolds allowed 

that “some deviations from the equal-population principle 

10 See also Samuel Issacharoff and Richard H. Pildes, Politics as 

Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 

643, 680-81 (1998) (“As in so many areas of the law, it is far easier to 

identify dramatically anticompetitive practices than it is to specify 

precisely what optimal competition would look like. This is particularly 

characteristic of much of the constitutional law of politics.”) (citing 

Gormillion v. Lightfoot, 364 U.S. 339 (1960) (striking down the 28-sided 

gerrymander of Tuskeegee); White v. Regester, 412 U.S. 755 (1973) 

(identifying impermissible vote dilution); Whitcomb v. Chavis, 403 U.S. 

124 (1971) (same); Davis v. Bandemer, 478 U.S. 109 (1986) (setting the 

standard for claims of unconstitutional partisan gerrymandering)). 
22 

are constitutionally permissible” if “based on legitimate 

considerations incident to the effectuation of a rational 

state policy.” 377 U.S. at 579. But even when justified on 

that basis, deviation from one-person, one-vote cannot be 

“[c]arried too far,” and “careful judicial scrutiny must be 

given . . . to the character as well as the degree of deviations from a strict population basis.” Reynolds, 377 U.S. at 

581. See also Davis, 478 U.S. at 133-34 (holding that a 

prima facie showing of discrimination in apportionment 

requires evidence that the challenged plan “has had or will 

have effects that are sufficiently serious to require intervention by the federal courts”) (emphasis added). 

There are many other contexts in which constitutional 

violations are a matter of degree. For example, in Burson 

v. Freeman, 504 U.S. 191 (1992), the Court upheld a 100-

foot “campaign-free zone” around polling places while 

recognizing that larger zones might be unconstitutional. 

The Court viewed the relevant question to be “how large a 

restricted zone is permissible” while recognizing that “[a]t 

some measurable distance from the polls, of course, 

governmental regulation of vote solicitation could effectively become an impermissible burden. . . . ” See id. at 

208, 210 (plurality). Similarly, the Supreme Court has 

found that the difference between 15 feet and 8 feet is 

constitutionally significant in determining whether buffer 

zones between protesters and persons entering medical 

clinics violate the First Amendment. Compare Schenck v. 

Pro-Choice Network of Western New York, 519 U.S. 357 

(1997) (holding 15-foot buffer zone unconstitutional), with 

Hill v. Colorado, 530 U.S. 703 (2000) (holding 8-foot buffer 

zone constitutional). By the same token, the difference 

between a contribution limit of $1000, on the one hand, 
23 

and $2000 or as much as $12,000, on the other hand, is 

constitutionally significant. 

B.	 The Court should act to preserve equal 

access to the electoral system through 

reasonable contribution limits. 

Equal protection principles require that the Court act 

to preserve the franchise for all citizens, just as it did in 

the wealth discrimination cases, see Harper, 383 U.S. 663; 

Bullock, 405 U.S. 134; Lubin, 415 U.S. 709, and the oneperson, one-vote cases. See Baker, 369 U.S. 186; Gray, 372 

U.S. 368; Wesberry, 376 U.S. 1; Reynolds, 377 U.S. 533; 

Davis, 478 U.S. 109. When this Court enforced the one 

person, one vote standard in Wesberry, it recalled Madison’s words: 

Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not 

the learned more than the ignorant; not the 

haughty heirs of distinguished names, more than 

the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the 

people of the United States. 

376 U.S. at 18 (citing THE FEDERALIST, No. 57 (Cooke ed. 

1961)). With the BCRA hard money increases, the rich will 

in every practical sense become the electors of federal 

officeholders, for no one lacking their favor will have a 

significant chance of success. In Wesberry, this Court 

famously observed, “No right is more precious in a free 

country than that of having a voice in the election of those 

who make the laws under which, as good citizens, we must 

live. Other rights, even the most basic, are illusory if the 

right to vote is undermined. Our Constitution leaves no room 

for classifications of people in a way that unnecessarily 
24 

abridges this right.” 376 U.S. at 17-18. It is this vision of 

the Constitution that the Court must now act to protect, 

by striking down BCRA’s doubling of hard-money contributions. 

The Court’s well-known admonishment in Buckley v. 

Valeo, 424 U.S. 1 (1976) that the voting rights cases do not 

support “abridging the rights of some persons to engage in 

political expression in order to enhance the relative voice 

of other segments of our society,” 424 U.S. at 49 n.55, does 

not bar relief in this case. The quoted statement was 

written in regard to the FECA’s expenditure limitations 

which, on the record in Buckley, the Court held to be an 

unconstitutional restriction of speech. Id. at 51. The 

appellants in this case seek to maintain the very contribution limits that Buckley held entail “only a marginal 

restriction upon the contributor’s ability to engage in free 

communication,” 424 U.S. at 20, and do not substantially 

infringe the speech or associational rights of donors. Id. at 

22; see also Federal Election Commission v. Beaumont, No. 

02-403, 539 U.S. ___, slip op. at 14 (U.S. June 16, 2003) 

(“Going back to Buckley v. Valeo, 424 U.S. 1 (1976), restrictions on political contributions have been treated as 

merely ‘marginal’ speech restrictions subject to relatively 

complaisant review under the First Amendment, because 

contributions lie closer to the edges than to the core of 

political expression.”); Shrink Missouri, 528 U.S. at 386-88 

(distinguishing between spending and contribution limits 

and upholding Missouri’s contribution limits ranging from 

$250 to $1,000); FEC v. Mass Citizens for Life, Inc., 479 

U.S. 238, 259-60 (1986) (“We have consistently held that 

restrictions on contributions require less compelling 

justification than restrictions on independent spending.”). 
25 

The appellants here seek to “assure that citizens are 

accorded an equal right to vote for their representatives 

regardless of . . . wealth,” Buckley, 424 U.S. 49 n. 55, a 

constitutional value that Buckley reaffirmed. Id. They do 

not seek to validate “governmentally imposed restrictions 

on political expression,” as Buckley prohibited. Id. Far 

from stifling speech, contribution limits “aim to democratize the influence that money itself may bring to bear upon 

the electoral process. In doing so, they seek to build public 

confidence in that process and broaden the base of a 

candidate’s meaningful financial support, encouraging the 

public participation and open discussion that the First 

Amendment itself presupposes.” Shrink Missouri, 528 U.S. 

at 401 (Breyer, J., joined by Ginsburg, J., concurring), citing 11 Reynolds, 377 U.S. at 565. While Buckley did not find, on 

the record before it, that the promotion of equality justified the imposition of spending limits, 424 U.S. at 48-49, 

11 Further, in his Shrink concurrence Justice Breyer cautioned 

against reading Buckley’s disapproval of spending limits as a prohibition of any effort to promote electoral equality, particularly through 

contribution limits. 

[Buckley] said . . . that it rejected ‘the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others.’ But 

those words cannot be taken literally. The Constitution often permits restrictions on the speech of some in order to 

prevent a few from drowning out the many. . . . Regardless, 

as the result in Buckley made clear, the statement does not 

automatically invalidate a statute that seeks a fairer electoral debate through contribution limits, nor should it forbid 

the Court to take account of the competing constitutional interests just mentioned. 

528 U.S. at 402 (Breyer, J., concurring) (internal citations omitted). 
26 

neither does that decision give constitutional license to a 

law that creates gaping inequalities.12 

Justice Breyer has observed that contribution limits 

“protect the integrity of the electoral process – the means 

through which a free society democratically translates 

political speech into concrete action.” Shrink Missouri, 528 

U.S. at 401 (Breyer, J., joined by Ginsburg, J., concurring). 

The evisceration of contribution limits accomplishes the 

inverse, striking at the integrity of the electoral process. 

The dangers to democracy posed by the increased influence of wealth in elections are undeniable. See, e.g., Burt 

Neuborne, Toward a Democracy-Centered Reading of the 

First Amendment, 93 NW U. L. REV. 1055, 1072-73 (1999) 

(“[W]ealth disparity introduces massive political inequality skewed to a predictable set of self-interested positions” 

and permits “wholly unjustifiable differences in political 

power to emerge. . . . The obvious inequalities introduced 

by massive wealth disparities cause many persons to lose 

faith in the system.”); Owen M. Fiss, Free Speech and 

Social Structure, 71 IOWA L. REV. 1405, 1412 (1986) (in an 

election campaign, the resources at the disposal of the rich 

“enable them to fill all available space for public discourse 

with their message”); Ronald Dworkin, Free Speech and 

the Dimensions of Democracy, in IF BUCKLEY FELL 63, 78 

12 Unlike DeShaney v. Winnebago County Department of Services, 

489 U.S. 189 (1989) (state’s failure to protect an individual against 

private violence does not constitute a violation of the Due Process 

Clause), this case does not involve the failure of the government to act. 

Rather, it involves the government’s direct action in enabling wealthy 

donors to dominate the electoral process, debasing the vote of ordinary 

citizens. 
27 

(E. Joshua Rosenkranz ed., 1999) (“People cannot plausibly regard themselves as partners in an enterprise of selfgovernment when they are effectively shut out from the 

political debate because they cannot afford a grotesquely 

high admission price.”). The BCRA’s hard money increases 

turn these dangers into accomplished fact. 

C.	 No legitimate state interest justifies the 

BCRA hard money increases. 

The harms wrought by the increased tide of hard 

money are not justified by any legitimate state interest. 

There is no factual basis for the purported rationale that 

because of inflation the increase is necessary to permit 

federal candidates to amass sufficient funds to campaign. 

Senator Mitch McConnell, a proponent of BCRA’s hard 

money limit increases, admitted at his deposition that he 

raised millions of hard money dollars in each of his campaigns for the U.S. Senate under the pre-BCRA limits, and 

in each race – including the most recent re-election campaign in 1996 – he has “successfully competed.” Deposition 

of Senator Mitch McConnell, Sept. 23, 2002, 12, line 8 to 

19, line 16, Jt. App. at 953-958. Defendant-Intervenor 

Senator Feingold admitted, “I have never considered the 

prior thousand dollars limitation to be a barrier to my 

ability to run for office.” Feingold Deposition, 243, lines 21-

23, Jt. App. at 856. Candidates for federal office have been 

raising and spending more money than ever under 13 the prior $1,000 limit. Fundraising by candidates for 

13 It is also worth noting that the Court, in Shrink Missouri, 528 

U.S. 377, rejected the argument that a $1,000 contribution limit was so 

low as to inhibit campaigning in Missouri’s statewide elections. 
28 

Congress increased by 425 percent from the 1977-78 cycle 

to the 1999-2000 cycle, and inflation accounted for less 

than half of that increase. Cressman Decl., ¶ 17, J.S. App. 

28a. If increased spending under the prior $1,000 limit 

requires outreach to an expanded donor base, surely this 

is a benefit, and preferable to increased reliance on an 

ever-smaller group of elite donors. Senator Christopher 

Dodd rightly called BCRA’s hard money increase a “cost-ofliving adjustment for the less than 1 percent of the American public that can afford to write a $1,000 check.” Adams 

Exh. 34, Jim Abrams, “Senate takes up rival to McCainFeingold spending limits,” Associated Press, 2, Jt. App. at 

2123. 

Neither is it credible that the hard-money increases 

will reduce the time that candidates spend fundraising. 

While candidates will be able to raise money in greater 

increments, this will only spur more fundraising, rather 

than less, and will push the campaign finance arms race to 

new heights. As Rep. Bennie Thompson testified, “I don’t 

know any Member of Congress that says ‘I’ve raised 

enough money for the campaign cycle. I’m going to 

stop’. . . . I think a Member will raise as much money as he 

or she can until that election is over.”14 Finally, the increased contribution limits will decrease, rather than 

14 See also Simon Decl. ¶ 11, J.S. App. 75a (“The increased contribution limits will only increase the amount of time Senators and 

Representatives spend fundraising.”); Adams Exh. 16, Declaration of 

Sam Gejdenson, former Member of Congress from Connecticut, ¶ 4, J.S. 

App. 70a; Hilliard Deposition, 88, lines 7-8, 90, lines 12-16, Jt. App. at 

891-893; Cressman Decl., ¶ 18, J.S. App. 28a (“Increasing contribution 

limits will not reduce the time candidates spend raising money. Many 

states have no contribution limits at all, yet there is no evidence from 

those states that candidates spend any less time raising funds.”). 
29 

increase, electoral competition, given that incumbents 

possess far more extensive networks of maximum donors. 

See supra, Statement of the Case, Section C.15 Challengers 

generally do not enjoy the fundraising advantages that 

come with the power of incumbency. While there may, on 

occasion, be a challenger able to garner large amounts of 

maximum donations, the increases will overwhelmingly 

favor those already entrenched in office. See Stratmann 

Decl., ¶¶ 5-12, J.S. App. 57a-60a. 

Rather than advance any legitimate state interest, the 

hard-money increases will undermine the very interests 

put forward by the defendants and intervenors in their 

defense of BCRA as a whole, including “preventing corruption and the appearance of corruption that results from 

unlimited financial contributions,” “restoring Americans’ 

faith in the electoral process and decreasing public cynicism about our system of government,” and “preventing 

the adverse impact on candidates, parties, federal office 

holders and other participants in the political process from 

their participation in activities that create the appearance 

of corruption.” See Adams Exh. 15, Intervenors’ Responses 

to Contention Interrogatories, Responses to McConnell 

Interrogatory No. 1 and Adams Interrogatory No. 1, 2-5, 

Jt. App. at 1738. The evidence presented supra makes 

abundantly clear that hard money donors contribute to 

candidates “because people want access,” Bumpers Decl., 

15 See also Williams Decl. ¶ 4, J.S. App. 77a (“[M]embers of 

committees with jurisdiction over matters of concern to wealthy 

interests attract large numbers of maximum contributions”); Bumpers 

Decl. ¶ 14, J.S. App. 137a (donors give because they want access to 

Members). 
30 

¶ 14, J.S. App. 137a, and that “[t]he increased individual 

contribution limits will exacerbate the disproportionate 

access and influence that the largest donors enjoy.” Simon 

Decl., ¶ 10, J.S. App. 74a-75a. It is well established that 

large contributions can create the reality or perception of 

corruption. See, e.g., Buckley, 424 U.S. at 26-28; Shrink 

Missouri, 528 U.S. 377; Frank v. City of Akron, 290 F.3d 

813 (6th Cir. 2002), reh’g en banc denied, 303 F.3d 752 (6th 

Cir. 2002), cert. denied, City of Akron, Ohio v. Kilby, 123 

S.Ct. 968 (2003); Daggett v. Commission on Governmental 

Ethics and Practices, 205 F.3d 445 (1st Cir. 2000). The 

BCRA hard money increases will only increase this 

threat.16 

II. THE APPELLANTS’ CLAIMS ARE FULLY 

JUSTICIABLE. 

Standing to litigate in federal court requires an 

“injury in fact” which is concrete and particularized, and 

16 In addition to increasing the reality and perception of corruption 

defined as a donor’s improper influence on policy outcomes, the BCRA 

will even more greatly increase corruption as it has been more broadly 

defined, as “money that causes officeholders to be more likely to 

respond to large donors than the needs of ordinary citizens.” Burt 

Neuborne, THE VALUES OF CAMPAIGN FINANCE REFORM 12 (Brennan 

Center for Justice 1998), available at http://www.brennancenter.org/ 

resources/downloads/cfr2.pdf. As Prof. Neuborne points out, such corruption 

causes “the erosion of the capacity of a public official to make independent judgments free from financial pressures. A political system that 

subordinates the independence and free will of its officials to the need 

to raise money may be said to be corrupt in a structural sense. An even 

broader idea of corruption would include financial arrangements that 

put pressure on an officeholder to compromise her independence by 

taking political positions, not because she believes in them, but because 

they have financial consequences for her.” Id. 
31 

actual or imminent, not conjectural or hypothetical; the 

injury must be fairly traceable to the challenged conduct; 

and it must be likely that the injury will be redressed by a 

favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 

555 (1992). The appellants have demonstrated that their 

claims meet these tests. 

The appellants’ injuries are legally cognizable, as 

established by case law outlawing electoral discrimination 

based on economic status, see Bullock, 405 U.S. at 143-44; 

Lubin, 415 U.S. at 716, and upholding the right to an 

equally meaningful vote, see Reynolds, 377 U.S. at 565; 

Davis, 478 U.S. 109, as discussed supra in Section I. The 

imminent effects of the BCRA hard money increases – the 

radically increased electoral power of the highest donors, 

and the corresponding diminishment in the electoral voice 

of low- and moderate-income citizens – is documented by 

the evidence described in the Statement of the Case, 

supra. This evidence includes expert testimony on the 

likely effects of increased limits on contribution patterns, 

see Cressman Decl., J.S. App. 21a; Green Decl., J.S. App. 

30a; McDonald Decl., J.S. App. 45a; Stratmann Decl., J.S. 

App. 55a, and testimony from voters and candidates who 

have experience in federal elections, wish to participate in 

future federal elections, and will see their electoral voices 

greatly diminished under the increased limits. See Caiazzo 

Decl., J.S. App. 79a; Crook Decl., J.S. App. 83a; Morales 

Decl., J.S. App. 88a; Brown Decl., J.S. App. 93a; Glick 

Decl., J.S. App. 96a; Adams Decl., J.S. App. 100a; Bolton 

Decl., J.S. App. 103a; Irland Decl., J.S. App. 107a; Joshi 

Decl., J.S. App. 110a; Lipoff Decl., J.S. App. 113a; Russell 

Decl., J.S. App. 116a; Seely-Kirk Decl., J.S. App. 127a; 

Wilson Decl., J.S. App. 130a. The appellees did not challenge the validity of any of this evidence in proceedings 

below. 
32 

In addition, the appellant candidates and their votersupporters articulate an injury to their ability to compete in 

elections consistent with the competitive harm recognized in 

numerous cases. See, e.g., Int’l Assn. of Machinists v. FEC, 

678 F.2d 1092 (D.C. Cir. 1982) (voters have standing to 

challenge FECA provisions allowing corporations greater 

latitude in solicitation than unions, giving corporations an 

economic advantage in elections); Vote Choice, Inc. v. 

DiStefano, 4 F.3d 26 (1st Cir. 1993) (hereinafter Vote 

Choice) (candidate not accepting public financing has 

standing to challenge statute raising contribution limit 

from $1,000 to $2,000 for candidates accepting public 

financing); Fulani v. League of Women Voters Educ. Fund, 

882 F.2d 621 (2d Cir. 1989) (candidate has standing to 

challenge tax-exempt status of debate-staging organization where she was deprived of opportunity to participate 

in debates and “palpably impaired” in her ability to compete “on an equal footing with other significant presidential candidates.”); Buchanan v. FEC, 112 F.Supp.2d 58 

(D.D.C. 2000) (candidate has standing to challenge exclusion from national debate under Federal Election Campaign Act). To deny cognizable injury from a candidate’s 

loss of competitive advantage “would tend to diminish the 

import of depriving a serious candidate for public office of 

the opportunity to compete equally for votes in an election.” Fulani, 882 F.2d at 626. The competitor standing 

doctrine has clear application in a case such as this one, 

where the appellants suffer an economic disadvantage in 

elections from the challenged provisions. See Vote Choice, 4 

F.3d at 37; Int’l Assn. of Machinists, 678 F.2d at 51. 

The appellants’ injuries are fairly traceable to the 

BCRA hard money increases. As discussed in Section II, 

supra, by enacting the increases, Congress enabled elite 
33 

donors to dominate the electoral process and effectively 

drown out the voices of low- and moderate-income citizens, 

directly causing the appellants’ injuries. Rather than seek 

to remedy generalized inequalities, the appellants ask that 

specific legislation directly causing electoral exclusion 

based on economic status be declared unconstitutional.17 

Finally, the injuries would clearly be redressed by a 

decision favorable to the appellants. An invalidation of the 

BCRA increases would return the hard money limits to the 

levels established by FECA before BCRA’s enactment. 

“The elementary rule of statutory construction is without 

exception that a void act cannot operate to repeal a valid 

existing statute, and the law remains in full force and 

operation as if the repeal had never been attempted.” 

Conlon v. Adamski, 77 F.2d 397, 399 (D.C. Cir. 1935). See 

also Frost v. Corporation Comm’n, 278 U.S. 515, 527 

(1929) (amendment to an Oklahoma statute regulating the 

licensing of cotton gins held unconstitutional, leaving preexisting statutory provisions in place); Arkansas Lousiana 

Gas Company v. City of Texarkana, 97 F.2d 179, 183 (8th 

Cir. 1938) (holding that pre-existing gas rates remained in 

effect upon a ruling that an amended rate schedule violated the Fourteenth Amendment; “A void legislative 

17 This case is distinguishable from the cases upon which Judge 

Henderson relied in her concurring opinion below. See Opinion of Judge 

Henderson, J.S. Supp. App. at 473sa-474sa. Unlike Ga. State Conference of NAACP Branches v. Cox, 183 F.3d 1259 (11th Cir. 1999), NAACP, 

Los Angeles Branch v. Jones, 131 F.3d 1317 (9th Cir. 1997), and 

Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996), the appellants here do not 

seek a court order mandating the State’s creation of a voluntary public 

financing system for candidates. Rather, the appellants merely seek an 

order invalidating legislative provisions which debase and dilute the 

fundamental right to vote. 
----------------------------- ------------------------------

34 

enactment does not operate to repeal a preexisting valid 

one.”). The appellants’ constitutional injuries will clearly 

be redressed by a return to the previous FECA limits, even 

though disparities of influence existed under the lower 

contribution limits as well. As discussed supra in Section 

I:A, a constitutional violation may arise when existing 

disparities rise to a level that causes injury of constitutional magnitude. Reynolds, 377 U.S. at 581; Davis, 478 

U.S. at 133-34; Burson, 504 U.S. at 208; and compare 

Schenck, 519 U.S. 357, with Hill, 530 U.S. 703. The BCRA 

increases multiply the electoral power of the highest 

donors at the expense of the appellant voters and candidates, who now face insurmountable obstacles to the 

effective exercise of their basic rights in the political 

process. 

----♦-- -

CONCLUSION 

For the foregoing reasons, the Court should reverse 

the decision of the district court; declare that sections 304, 

307, and 319 of BCRA, codified in 2 U.S.C. § 431 et seq., 

violate the equal protection guarantee incorporated by the 

Due Process Clause of the Fifth Amendment to the United 

States Constitution; and remand the case to the district 

court with instructions to enter a permanent injunction 

restraining the appellees from enforcing or otherwise 

applying sections 304, 307, and 319 of BCRA and ordering 

the appellees to enforce the provisions of the Federal 

Election Campaign Act of 1971, 2 U.S.C. § 431 et seq., that 

were amended by sections 304, 307, and 319 of BCRA as 

such provisions existed prior to the enactment of BCRA. In 

the alternative, the Court should reverse the district 
35 

court’s ruling of nonjusticiability and remand the case for 

consideration on the merits. 

Respectfully submitted, 

JOHN C. BONIFAZ 

Counsel of Record 

BONITA TENNERIELLO


LISA J. DANETZ


BRENDA WRIGHT


NATIONAL VOTING RIGHTS INSTITUTE


27 School Street 


Suite 500 


Boston, MA 02108 


(617) 624-3900 


DAVID A. WILSON


AVI SAMUEL GARBOW


HALE AND DORR LLP 


1455 Pennsylvania Avenue, NW, 


10th Floor 

Washington, DC 20004 

(202) 942-8400 

Attorneys for Appellants 

July 8, 2003