No. 12-536

IN THE

Supreme Court of the United States

SHAUN MCCUTCHEON and REPUBLICAN NATIONAL COMMITTEE,

Plaintiffs-Appellants,

—v.—

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BRIEF OF THE BRENNAN CENTER FOR JUSTICE 

AT N.Y.U. SCHOOL OF LAW AS AMICUS CURIAE

IN SUPPORT OF APPELLEE

DANIEL F. KOLB

Counsel of Record

JESSICA K. FOSCHI

MICHAEL E. MCGOVERN

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

daniel.kolb@davispolk.com 

Attorneys for Amicus Curiae

J. ADAM SKAGGS

DAVID W. EARLEY

BRENNAN CENTER FOR

JUSTICE AT N.Y.U. 

SCHOOL OF LAW

161 Avenue of the Americas,

12th Floor

New York, New York 10013

d
TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ..................................... iv 

INTEREST OF THE AMICUS CURIAE .................. 1 

SUMMARY OF ARGUMENT ................................... 1 

ARGUMENT .............................................................. 4 

I. From the Founding of Our Government 

Through to the Present Day, Efforts To 

Protect the Integrity of the Democratic 

System of Government Have Been 

Considered To Be Imperative. ........................... 4 

A. The Founders were concerned with the 

integrity of the new form of government 

and the People’s confidence in that 

government. ............................................... 4 

B. The First Amendment reflects the 

Founders’ concern for the integrity of 

the new system of democratic selfgovernment and the People’s confidence 

in that government... .............................. 11 

C. When factions have threatened the 

People’s faith in democracy, the 

Congress has acted to reform campaign 

finance practices.................... ............... 14 

i) The excesses of the Gilded Age and 

resulting reforms of the 

Progressive Era ................................ 14 
ii

TABLE OF CONTENTS—Continued 

Page 

ii) Campaign finance abuses in the 

Watergate Era and the postWatergate reforms ........................... 19 

II. Preventing Corruption and the Appearance 

of Corruption Are Aspects of a More 

Fundamental Governmental Interest in 

Preserving the Integrity of SelfGovernment. .................................................... 25 

A. This Court has long recognized these 

interests as being the basis on which 

contribution limits are upheld. ............... 25 

B. Concerns about the perception of 

corruption are well founded. ................... 29 

III. The Results of Striking Aggregate 

Contribution Limits Must Be Assessed 

Against This Background ................................ 30 

A. Eliminating aggregate limits would 

render the underlying contribution 

limits virtually meaningless. ................... 30 

B. Were contributions to candidates and 

parties effectively unlimited, they would 

follow the pattern of contributions to 

super PACs. .............................................. 33 
iii

TABLE OF CONTENTS—Continued 

Page 

C. Permitting a tiny class of donors 

making enormous contributions to 

dominate political giving would give rise 

to extraordinary corruption risks. ........... 35 

IV. The Validity of Campaign Contribution 

Limits Should Be Determined by a Review 

Cognizant of the Fundamental Interests in 

Maintaining Both the Integrity of 

Government and Public Confidence in that 

Government. ..................................................... 37 

CONCLUSION ......................................................... 39 
iv 

TABLE OF AUTHORITIES 

Page 

CASES

Arizona Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 

131 S. Ct. 2806 (2011) ............................................ 12 

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................ 11, 25, 26, 35, 37 

Citizens United v. FEC, 

558 U.S. 310 (2010) ................................................ 25 

Ex parte Yarbrough, 

110 U.S. 651 (1884) .................................... 27, 28, 29 

FEC v. Beaumont, 

539 U.S. 146 (2003) ................................................ 37 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) .......................................... 26, 27 

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

551 U.S. 449 (2007) ................................................ 25 

First Nat’l Bank of Bos. v. Bellotti, 

435 U.S. 765 (1978) ................................................ 26 

McConnell v. FEC, 

540 U.S. 93 (2003) ................................ 31, 32, 36, 37 
v

TABLE OF AUTHORITIES—Continued 

Page 

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) ............................................ 5, 25 

Randall v. Sorrell, 

548 U.S. 230 (2006) .......................................... 25, 37 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) .......................... 33, 34 

United States v. Automobile Workers, 

352 U.S. 567 (1957) ................................................ 27 

United States v. Miss. Valley Generating Co., 

364 U.S. 520 (1961) .................................................. 5 

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 6, cl. 1 ............................................. 8 

U.S. Const. art. I, § 6, cl. 2 ............................................. 8 

U.S. Const. art. I, § 7, cl. 1 ............................................. 8 

STATUTES, REGULATIONS & RULES

2 U.S.C. § 441i(e) ......................................................... 32 

2 U.S.C. § 441a(a)(4) .................................................... 32 
vi

TABLE OF AUTHORITIES—Continued 

Page 

11 C.F.R. § 102.17(c)(5) ................................................ 32 

11 C.F.R. § 110.3(c) ...................................................... 32 

Hatch Act of 1939, Pub. L. No. 76-252, 

 53 Stat. 1147 (1939)................................................ 19 

Labor Relations Management Act, 1947 (“TaftHartley Act”), Pub. L. No. 80-101, 

 61 Stat. 136 (1947) ................................................. 19 

Publicity of Political Contributions Act, Pub. L. No. 

61-274, 36 Stat. 822 (1910) .................................... 19 

Pub. L. No. 62-32, 37 Stat. 25 (1911) .......................... 19 

Pub. L. No. 506, Title III, 43 Stat. 1070 (1925) .......... 19 

Sup. Ct. R. 37 ................................................................. 1 

OTHER AUTHORITIES

2 Samuel Eliot Morison & Henry Steele Commager, 

The Growth of the American Republic (4th ed. 

1950) ....................................................................... 27 

120 Cong. Rec. 27228 (1974) 

(statement of Rep. Gaydos) .................................... 23 
vii

TABLE OF AUTHORITIES—Continued 

Page 

147 Cong. Rec. 3865 (2001) 

(statement of Sen. Feingold) .................................. 24 

147 Cong. Rec. 5198 (2001) 

(statement of Sen. Kohl) ......................................... 24 

148 Cong. Rec. 1306 (2002) 

(statement of Rep. Shays) ...................................... 24 

148 Cong. Rec. 3559 (2002) 

(statement of Sen. Dodd) .................................. 24, 25 

148 Cong. Rec. 3575 (2002) 

(statement of Rep. Levin) ....................................... 25 

Adam Winkler, “Other People’s Money”: Corporations, 

Agency Costs, and Campaign Finance Law, 92 

Geo. L.J. 871 (2004) .......................................... 15, 16 

Alexander Meiklejohn, Free Speech and Its Relation 

to Self-Government (1948) .................................. 4, 12 

Alexander Meiklejohn, The First Amendment Is an 

Absolute, 1961 Sup. Ct. Rev. 245 ........................... 13 

Alfred Henry Lewis, Mark Hanna, M’Kinley, and the 

Labor Unions, News and Observer (Raleigh, 

N.C.), Aug. 9, 1896.................................................. 16 

Bernard Bailyn, The Ideological Origins of the 

American Revolution (enlarged ed. 1992) ................ 9 
viii

TABLE OF AUTHORITIES—Continued 

Page 

Blair Bowie & Adam Lioz, Billion-Dollar Democracy: 

The Unprecedented Role of Money in the 2012 

Elections (2013) ................................................ 34, 35 

Bradley A. Smith, The Sirens’ Song: Campaign 

Finance Regulation and the First Amendment, 

6 J.L. & Pol’y 1 (1997) ............................................ 16 

Burt Neuborne, Felix Frankfurter’s Revenge: An 

Accidental Democracy Built by Judges, 

35 N.Y.U. Rev. L. & Soc. Change 602 (2011) .............. 17 

Ciara Torres-Spelliscy, How Much Is An 

Ambassadorship? And the Tale of How Watergate 

Led to a Strong Foreign Corrupt Practices Act and 

a Weak Federal Election Campaign Act, 

16 Chap. L. Rev. 71 (2012) ..................................... 20 

CNN Opinion Research Corporation, Poll: June 3-7, 

2012, CNN.com (June 9, 2011) 

http://i2.cdn.turner.com/cnn/2011/images/06/09/re

l10d-2.pdf ................................................................ 29 

Emily Swanson, Campaign Finance Poll Finds Most 

Support Donation Limits, Huffington Post

(Feb. 22, 2013), http://www.huffingtonpost.com/ 

 2013/02/22/campaign-financepoll_n_2743877.html .............................................. 30 
ix

TABLE OF AUTHORITIES—Continued 

Page 

Federal Election Reform, 1973: Hearings Before the 

Subcomm. on Privileges & Elections of the 

Committee on Rules & Admin., 93d Cong. 15 

(1973) (statement of Sen. Mathias) ....................... 22 

H.R. Rep. No. 93-1239 (1974) ...................................... 22 

H.R. Rep. No. 103-375 (1993) ................................ 23, 24 

Huffington Post & YouGov, Omnibus Poll, 

Huffington Post (Feb. 2013), 

http://big.assets.huffingtonpost.com/cftoplines_ 

 split1.pdf ................................................................. 30 

Jackson Lears, Rebirth of a Nation: The Making of 

Modern America, 1877-1920 (2009) ....................... 16 

James D. Savage, Corruption and Virtue at the 

Constitutional Convention, 56 J. Pol. 174 (1994) .... 9 

John Locke, Two Treatises of Government (1821) ........ 4 

Kate Pickert, Campaign Financing: A Brief History, 

Time (June 30, 2008), http://www.time.com/time/ 

 nation/article/0,8599,1819288,00.html .................. 17 

Katherine Bacher, Univ. of Pittsburgh Sch. of Law, 

U.S. Campaign Finance, Jurist, 

http://jurist.org/feature/2013/07/us-campaignfinance.php ............................................................. 14 
x

TABLE OF AUTHORITIES—Continued 

Page 

Lawrence Lessig, Republic Lost (2011) ..................... 7, 8 

Melvin I. Urofsky, Money and Free Speech: 

Campaign Finance Reform and the Courts 

 (2005) ...................................................................... 15 

Mescellany—Campaign Poetry: The Present-Taking 

President, 43 Prairie Farmer 267 (Chicago 

1872) ........................................................................ 15 

Most Say Political Donors Get More than Their 

Money’s Worth, Rasmussen Reports (Feb. 9, 

2009), http://www.rasmussenreports.com/ 

public_content/politics/general_politics/february_2

009/most_say_political_donors_get_more_than_th

eir_money_s_worth ........................................... 29, 30 

Notes of Debates in the Federal Convention of 1787 

Reported by James Madison 40 (Bicentennial ed. 

1987) .................................................................. 5, 7, 8 

Notes of James Madison, in 1 The Records of the 

Federal Convention of 1787 (Max Farrand ed. 

1911) ........................................................................ 10 

Notes of James Madison, in 2 The Records of the 

Federal Convention of 1787 (Max Farrand ed. 

1911) .................................................................. 10, 11 
xi

TABLE OF AUTHORITIES—Continued 

Page 

Notes of Robert Yates (June 23, 1787), in 1 The 

Records of the Federal Convention of 1787 

(Max Farrand ed. 1911) ............................................ 9 

Notice of Price Index Adjustments for Contribution 

and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 78 Fed. Reg. 8530 

(Feb. 6, 2013) ......................................................... 31 

Paul M. Sniderman et al., Stability of Support for the 

Political System, 3 Am. Pol. Q. 437 (1975) ............ 20 

President Grant’s Friends, Independent (New York), 

Aug. 22, 1872 .................................................... 14, 15 

Richard Briffault, Life of the Parties? Money, Politics, 

and Campaign Finance Reform, 8 Election L.J. 

207 (2009) ............................................................... 16 

Robert G. Natelson, The Constitution and the Public 

Trust, 52 Buff. L. Rev. 1077 (2004) .......................... 5 

Robert G. Natelson, The General Welfare Clause and 

the Public Trust: An Essay in Original 

Understanding, 52 U. Kan. L. Rev. 1 (2003) ... 10, 11 

Robert H. Bork, Neutral Principles and Some First 

Amendment Problems, 47 Ind. L.J. 1 (1971) ......... 13 
xii

TABLE OF AUTHORITIES—Continued 

Page 

Robert H. Sitkoff, Corporate Political Speech, 

Political Extortion, and the Competition for 

Corporate Charters, 69 U. Chi. L. Rev. 1103 

(2002) ................................................................ 15, 16 

Roger G. Dunham & Armand L. Mauss, Waves from 

Watergate: Evidence Concerning the Impact of the 

Watergate Scandal upon Political Legitimacy and 

Social Control, 19 Pac. Soc. Rev. 469 (1976) ......... 20 

S. Rep. No. 59-3056 (1906) .......................................... 18 

S. Rep. No. 92-229 (1971) ............................................ 21 

S. Rep. No. 93-310 (1973) ............................................ 22 

Stephen Breyer, Active Liberty: Interpreting Our 

Democratic Constitution (2005) ....................... 12, 13 

Susan J. Pharr, Robert D. Putnam & Russell J. 

Dalton, A Quarter-Century of Declining 

Confidence, 11 J. Democracy 5 (2000) ................... 20 

The Federalist No. 10 (James Madison) 

(Tudor Publishing Co., 1937) ................................... 6 

The Federalist No. 22 (Alexander Hamilton) 

(Tudor Publishing Co., 1937) ................................... 4 

The Federalist No. 39 (James Madison) 

(Tudor Publishing Co., 1937) ............................... 6, 7 
xiii

TABLE OF AUTHORITIES—Continued 

Page 

The Federalist No. 46 (James Madison) 

(Tudor Publishing Co., 1937) ............................. 5, 10 

The Federalist No. 51 (Alexander Hamilton or James 

Madison) (Tudor Publishing Co., 1937) ................. 11 

The Federalist No. 52 (James Madison) 

(Tudor Publishing Co., 1937) ................................... 7 

The Federalist No. 57 (James Madison) 

(Tudor Publishing Co., 1937) ............................. 9, 10 

Theodore Roosevelt, President of the U.S., State of 

the Union Address (Dec. 3, 1907) .................... 17, 18 

Theodore Roosevelt, Theodore Roosevelt: 

An Autobiography (1913) ....................................... 18 

Zephyr Teachout, The Anti-Corruption Principle, 

 94 Cornell L. Rev. 341 (2009) ............................. 9, 10 
INTEREST OF THE AMICUS CURIAE1

The Brennan Center for Justice at N.Y.U. 

School of Law is a not-for-profit, non-partisan public 

policy and law institute that focuses on issues of 

democracy and justice. Through the activities of its 

Democracy Program, the Brennan Center seeks to 

bring the ideal of representative self-government 

closer to reality by working to eliminate barriers to 

full political participation, and to ensure that public 

policy and institutions reflect diverse voices and 

interests that make for a rich and energetic 

democracy. 

SUMMARY OF ARGUMENT 

 On Inauguration Day when each new 

President of the United States takes office, those 

watching on television across the United States and 

throughout the world are reminded that on that day 

our country is undertaking a peaceful transition of 

power from one leader to the next and often one 

political party to another. Regardless of how 

vehemently the election campaign had been waged, 

there is no argument from the outgoing president, 

who until leaving office is seen as the most powerful 

public figure in the world. There is instead 

acceptance that the people have chosen a new leader 

by operation of a democratic process designed over 

two hundred years ago. While many have come to 

 1 This amicus curiae brief is filed with the written 

consent of the parties. Pursuant to Supreme Court Rule 37, 

amicus curiae states that counsel for amicus authored this brief 

in its entirety. No person or entity other than amicus, its 

supporting organizations, and its counsel made a monetary 

contribution to the preparation of this brief. This brief does not 

purport to convey the position of N.Y.U. School of Law. 
2

take such peaceful transitions in the United States 

for granted, they are, in fact, remarkable in the 

context of history and in comparison to many other 

nations of the world. 

 Such transitions are possible because the 

Founders of our Republic carefully crafted a form of 

government designed to ensure that sovereignty 

would rest with the “People” as a whole, and that the 

People would have continuing faith in our 

representative form of government as a government 

“of the People.” Fearing that government could be 

corrupted if influence-seeking were unchecked and 

narrow classes gained disproportionate influence, the 

Founders structured our republic to ensure that the 

People were the “pure, original fountain of all 

authority.” They sought to ensure that the People 

were steadfastly confident in the integrity of the 

government. 

 Maintaining the People’s sovereignty and their 

faith in the government are compelling interests of 

the highest order. The Founders understood that if 

these interests are not properly safeguarded, the 

government can become subject to control by factions 

working for their own peculiar interests rather than 

the interests of the broader public. 

 History reinforces the importance of the faith 

of the People in government and our collective 

abhorrence for any particular faction or group 

becoming sovereign. When in our history the People 

have seen such control or influence by a faction 

developing, strong steps have been taken to ensure 

that sovereignty remains with the People. 
3

 One of the most important steps to beat back 

government by faction has been the adoption of 

campaign contribution limits, of which aggregate 

contribution limits are an essential component. In 

the absence of aggregate contribution limits, donors 

of substantial means could give effectively unlimited 

sums directly to candidates and parties, 

marginalizing the role of the People as a whole and 

ensuring the dominance of powerful factions after 

elections conclude. That would invite the very 

consequence that our nation has long sought to 

avoid: undue influence of the few with a resulting 

loss by the People of their faith in our system of 

representative government. 

 We submit this brief to emphasize the singular 

importance of maintaining the integrity of the 

democratic process and the faith of the People in 

their government, as designed by the Founders, and 

the importance of weighing the constitutionality of 

campaign contribution limits with due emphasis on 

those compelling government interests. 
4

ARGUMENT 

I. From the Founding of Our Government 

Through to the Present Day, Efforts To 

Protect the Integrity of the Democratic 

System of Government Have Been 

Considered To Be Imperative. 

A. The Founders were concerned with the 

integrity of the new form of government 

and the People’s confidence in that 

government. 

From the nation’s inception, the Founders 

sought to ensure the integrity of the new system of 

representative government and the People’s 

confidence in it. Doing so, they understood, required 

that sovereignty be genuinely held—and be 

understood by the citizenry to be held—by the People 

as a whole. 

As Alexander Hamilton proclaimed in the 

Federalist Papers, the legitimacy of a democratic 

government depends on the People’s confidence and 

consent: “The fabric of American empire ought to 

rest on the solid basis of THE CONSENT OF THE 

PEOPLE. The streams of national power ought to 

flow immediately from that pure, original fountain of 

all legitimate authority.” The Federalist No. 22, at

151 (Alexander Hamilton) (Tudor Publishing Co. 

1937); see also John Locke, Two Treatises of 

Government 355 (1821); Alexander Meiklejohn, Free 

Speech and Its Relation to Self-Government 9-16 

(1948). James Madison reiterated this principle: 

“[T]he ultimate authority, wherever the derivative 
5

may be found, resides in the people alone . . . .” The 

Federalist No. 46, at 321 (James Madison) (Tudor 

Publishing Co. 1937). And James Wilson warned at 

the Constitutional Convention that without the 

support of the people, a republican government will 

fail: “No government could long subsist without the 

confidence of the People. In a republican 

Government this confidence was particularly 

essential.” Notes of Debates in the Federal 

Convention of 1787 Reported by James Madison 40 

(Bicentennial ed. 1987) [hereinafter Debates]. See 

also Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 

390 (2000) (“Democracy works only if the people have 

faith in those who govern, and that faith is bound to 

be shattered when high officials and their appointees 

engage in activities which arouse suspicions of 

malfeasance and corruption.” (citing United States v. 

Miss. Valley Generating Co., 364 U.S. 520, 562 

(1961)) (internal quotation marks omitted)). 

The Founders conceived of public office as a 

trust,2 with politicians as fiduciaries who must be 

loyal to the whole people, not just to a particular 

 2 The language of trusteeship permeates the founding 

documents, state constitutions, and writings from the time. It 

is found in the Federalist Papers and in debates over the 

sedition act. For example, The Federalist No. 46 states: 

“[G]overnments are in fact . . . agents and trustees of the 

people . . . .” The Federalist No. 46, supra, at 321. The 

language of trusteeship and fiduciary responsibility “seems to 

rank just below ‘liberty’ and ‘republicanism’ as an element of 

the ideology of the day.” See Robert G. Natelson, The 

Constitution and the Public Trust, 52 Buff. L. Rev. 1077, 1086 

(2004). 
6

group. Accordingly, the Founders were especially 

concerned about the growth of small and powerful 

factions—defined, in Madison’s words, as groups of 

citizens “united and actuated by some common 

impulse of passion, or of interest, adversed to the 

rights of other citizens, or to the permanent and 

aggregate interests of the community.” The 

Federalist No. 10, at 63 (James Madison) (Tudor 

Publishing Co. 1937). They believed that such 

factions were not unlike the King and the aristocracy 

from whom they had separated, and were concerned 

that factions wielding undue influence would corrupt 

the government and undermine the People’s 

confidence in it. 

In the Federalist Papers, Madison voiced his 

worry about the impact that effective representation 

of factions rather than the whole people would have 

on the new Republican form of government: 

[W]e may define a republic to be, or at 

least may bestow that name on, a 

government which derives all its powers 

directly or indirectly from the great 

body of the people . . . . It is 

ESSENTIAL to such a government that 

it be derived from the great body of the 

society, not from an inconsiderable 

proportion, or a favored class of it; 

otherwise a handful of tyrannical 

nobles, exercising their oppressions by a 

delegation of their powers, might aspire 

to the rank of republicans, and claim for 
7

their government the honorable title of 

republic. 

The Federalist No. 39, at 257 (James Madison) 

(Tudor Publishing Co. 1937). 

The Founders worried that if such factions 

became too powerful, public officials would become 

beholden to them and would use, or be perceived as 

using, their power as representatives of the people to 

benefit only narrow coalitions. Driven by that 

concern, the Founders designed a government that 

would not likely fall prey to such factions. See

Lawrence Lessig, Republic Lost 130 (2011) (quoting 

The Federalist No. 52 (James Madison) (“This is the 

work of sophisticated constitutional architects all 

aimed at a single end: to establish and protect a link 

between Congress and ‘the People alone.’”)). The 

Constitution that they wrote distributed power 

between state and federal governments, put in place 

checks and balances between the three federal 

branches, and designed elections so as to maintain a 

government free from control by a few. 

While debating the method of electing 

senators at the Constitutional Convention of 1787, as 

reported by James Madison, Gouverneur Morris of 

Pennsylvania urged that even a strong, independent 

government was not enough. The new Republic also 

needed shrewd, carefully selected politicians, as well 

as governmental institutions designed to watch those 

elected closely: “A firm [government] alone can 

protect our liberties. [Morris] fears the influence of 

the rich. They will have the same effect here as 
8

elsewhere if we do not by such a [government] keep 

them within their proper sphere.” Debates, supra, at 

235. 

To this end, beyond structuring the 

government to divide powers among the branches, 

the Founders placed additional safeguards in the 

Constitution to prevent government from developing 

illegitimate dependencies. The Ineligibility Clause,3

the Origination Clause,4 and the Emoluments 

Clause5 were all created to preserve the 

government’s dependency upon the People. Lessig, 

supra, at 129-30. Similarly, the delegates decided 

that the federal government should pay for the 

salaries of members of Congress in order to prevent 

them from being dependent upon state legislatures 

rather than the People.6 Edmund Randolph warned, 

“If the States were to pay the members of the Natl. 

Legislature, a dependence would be created that 

would vitiate the whole System.” Debates, supra, at 

171. Hamilton echoed this concern, saying, “Those 

who pay are the masters of those who are paid.” Id. 

at 133. 

The founding generation cited the need to 

avoid the corrupt capture of government by faction 

early and often in the convention and ratification 

 3 U.S. Const. art. I, § 6, cl. 2. 

4 Id. art. I, § 7, cl. 1. 

5 Id. art. I, § 6, cl. 2. 

6 See id. art. I, § 6, cl. 1. 
9

debates. In one of the first speeches made at the 

Constitutional Convention, George Mason warned, 

“[I]f we do not provide against corruption, our 

government will soon be at an end . . . .” Notes of 

Robert Yates (June 23, 1787), in 1 The Records of the 

Federal Convention of 1787, at 391, 392 (Max 

Farrand ed. 1911). In his Notes, Madison noted that 

fifteen delegates used the term “corruption” no fewer 

than a combined fifty-four times. See James D. 

Savage, Corruption and Virtue at the Constitutional 

Convention, 56 J. Pol. 174, 177 (1994). Indeed, at the 

Convention, “there was near unanimous agreement 

that corruption was to be avoided, that its presence 

in the political system produced a degenerative 

effect.” Id. at 181.7 The topic was again discussed 

extensively in the public debates over the 

Constitution’s ratification. See Bernard Bailyn, The 

Ideological Origins of the American Revolution, at 

xiii (enlarged ed. 1992). As Professor Zephyr 

Teachout succinctly notes, “The Framers were 

obsessed with corruption.” Zephyr Teachout, The 

 7 Madison expressed a similar concern in The Federalist 

No. 57: 

The aim of every political constitution is, or 

ought to be, first to obtain for rulers men who 

possess most wisdom to discern, and most virtue 

to pursue, the common good of the society; and 

in the next place, to take the most effectual 

precautions for keeping them virtuous whilst 

they continue to hold their public trust. 

The Federalist No. 57, at 389 (James Madison) (Tudor 

Publishing Co. 1937). 
10

Anti-Corruption Principle, 94 Cornell L. Rev. 341, 

348 (2009). 

The historical record leaves no doubt that the 

Founders understood corruption as more than just 

individual quid pro quo payments for legislation. To 

them corruption encompassed any use of public 

power for private purposes—not merely theft, but 

any use of government power and assets to benefit 

special interests rather than the broader public. See

Robert Natelson, The General Welfare Clause and 

the Public Trust: An Essay in Original 

Understanding, 52 U. Kan. L. Rev. 1, 48 (2003). 

They believed it critical that legislators remain 

“impartial guardians of a common interest,” The 

Federalist No. 46, at 324 (James Madison) (Tudor 

Publishing Co. 1937), and be “scrupulously impartial 

to the rights and pretensions of every class and 

description of citizens.” The Federalist No. 57, at 

389-90 (James Madison) (Tudor Publishing Co. 

1937). They discussed the need for impartiality 

repeatedly when drafting the Constitution.8 And 

 8 See Notes of James Madison, in 1 The Records of the 

Federal Convention of 1787, at 88 (Max Farrand ed. (1911)) 

(reporting Pierce Butler’s statement that unity in executive will 

promote impartiality); id. at 139 (recording Elbridge Gerry as 

making same point); id. at 427-28 (noting James Madison’s 

belief that Senate would promote impartiality); id. at 580 

(recording John Randolph’s statement on importance of 

impartial census); Notes of James Madison, 2 The Records of 

the Federal Convention of 1787, at 42 (Max Farrand ed. (1911))

(reporting statement of Gouverneur Morris on importance of 

impartial impeachment trial); id. at 124 (noting James 

Madison’s belief in need for impartiality in representation); id.

at 288 (noting Oliver Elsworth’s statement on desirability of 
11

they structured the new government to ensure that it 

could not be bent to the will of any circumscribed 

class of citizens, declaring that the People would 

recognize the government as a failure if such a result 

came to pass. See The Federalist No. 51, at 358 

(Alexander Hamilton or James Madison) (Tudor 

Publishing Co. 1937) (discussing need for checks and 

balances to create government immune to control by 

factions). 

B. The First Amendment reflects the 

Founders’ concern for the integrity of the 

new system of democratic selfgovernment and the People’s confidence 

in that government. 

Just as checks and balances were intended to 

prevent the rise of a new controlling aristocracy, the 

First Amendment was designed to safeguard a full 

and robust debate among all citizens in order to 

preserve the People’s role in the electoral and 

legislative processes. As this Court has repeatedly 

recognized, such robust “[d]iscussion 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 v. Valeo, 

424 U.S. 1, 14 (1976). 

The First Amendment seeks to preserve a 

genuine public debate, not a debate where only 

powerful factions are able to meaningfully 

 

impartial rewards for merit). See generally, Natelson, The 

General Welfare Clause and the Public Trust, supra, at 51-53. 
12

communicate. The amendment is intended to ensure 

that no faction exerts undue influence upon the 

subjects and parameters of the debate by 

overwhelming the voices of others in the debate as to 

both possible issues and candidates for political 

office. It would be the very antithesis of what the 

First Amendment freedoms are intended to preserve 

to allow factions, using their wealth, to monopolize 

debate, and thereby monopolize governance. 

This concern is not that the “playing field” be 

made “level” for all, see Arizona Free Enterprise 

Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 

(2011), or that all citizens be given an equal voice. 

Rather, the concern is that all citizens be afforded a 

chance to participate meaningfully in the public 

debate and that their voices not be drowned out. The 

aggregate contribution limits at issue in this case 

afford a chance for citizens who give only modest 

sums to have their voices heard in the public debate 

and thereby guide governmental policy. That is the 

very essence of representational government and, as 

the Founders recognized, it is crucial if the People 

are to have faith in their government. 

Scholars have often recognized that one of the 

fundamental aims of the First Amendment is to 

protect and preserve the People’s interest in selfgovernment and governmental processes. See

Meiklejohn, supra, at 26 (“The principle of the 

freedom of speech springs from the necessities of the 

program of self-government.”); see also Stephen 

Breyer, Active Liberty: Interpreting Our Democratic 

Constitution 46-47 (2005) (explaining how First 
13

Amendment protects participatory self-government); 

Robert H. Bork, Neutral Principles and Some First 

Amendment Problems, 47 Ind. L.J. 1, 24-28 (1971); 

Alexander Meiklejohn, The First Amendment Is an 

Absolute, 1961 Sup. Ct. Rev. 245, 255. 

It has been recognized accordingly from the 

time of the Founders and throughout the country’s 

history that self-government—and the public’s 

confidence in government—are threatened by the 

ability of a faction of wealthy individuals to 

monopolize political debate by contributing immense 

amounts of money to political parties and candidates 

for political office. See infra Parts I.C, II.B. Wholly 

consistent with that, limits on contributions to 

candidates for political office have been adopted to 

thwart control by faction and the resulting erosion of 

the public’s confidence in self-government. Such 

limits are thus entirely consistent with the 

imperative of self-government that animates the 

First Amendment. See Breyer, supra, at 47-48 (“To 

focus upon the First Amendment’s relation to the 

Constitution’s democratic objective is helpful because 

the campaign laws seek to further a similar 

objective. . . . Ultimately, they seek thereby to 

maintain the integrity of the political process . . . . 

Insofar as they achieve these objectives, those laws, 

despite the limits they impose, will help to further 

the kind of open public political discussion that the 

First Amendment seeks to sustain, both as an end 

and as a means of achieving a workable 

democracy.”). 
14

C. When factions have threatened the 

People’s faith in democracy, the Congress 

has acted to reform campaign finance 

practices. 

History provides numerous examples of the 

danger of political capture by factions threatening 

democratic governance and the People’s faith 

therein. Such episodes have regularly been followed 

by steps to reinforce the People’s faith in their 

representative government through legislation and 

reform. 

i) The excesses of the Gilded Age and 

resulting reforms of the Progressive 

Era 

It was widely known that the 1872 

presidential campaign of Ulysses S. Grant was 

financed in large part by a few exceedingly wealthy 

individuals. In fact, financier and railroad tycoon 

Jay Cooke single-handedly funded twenty-five 

percent of the Republican campaign budget. See

Katherine Bacher, Univ. of Pittsburgh Sch. of Law, 

U.S. Campaign Finance, Jurist, http://jurist.org/

feature/2013/07/us-campaign-finance.php (last 

visited July 19, 2013). 

Such contributions became a singular concern 

of the American people, who considered Grant 

entirely beholden to his wealthy backers. As one 

contemporaneous editorial explained, a common 

assertion was that “President Grant’s friends are all 

in office or all in ‘rings.’ . . . All are gorged with 
15

plunder or plethoric with power.” See President 

Grant’s Friends, Independent (New York), Aug. 22, 

1872, at 4. Grant’s notoriety made him the subject of 

a poem published in The Prairie Farmer, which 

called him the “Present-Taking President” and noted, 

“a liberal giver never lacks [a] welcome at [his] gate.” 

See Mescellany—Campaign Poetry: The PresentTaking President, 43 Prairie Farmer 267 (Chicago 

1872). The public believed that Grant was indebted 

to the wealthy and that his government was illicitly 

filled with his financiers rather than individuals 

chosen in the best interests of the People. 

Concerns about election funding—and the 

capture of government by wealthy political 

benefactors—continued throughout the nineteenth 

century’s Gilded Age. See Robert H. Sitkoff, 

Corporate Political Speech, Political Extortion, and 

the Competition for Corporate Charters, 69 U. Chi. L. 

Rev. 1103, 1131 (2002). The 1896 election of William 

McKinley was particularly notorious as the “highwater mark” for corporate funding of political 

campaigns. Adam Winkler, “Other People’s Money”: 

Corporations, Agency Costs, and Campaign Finance 

Law, 92 Geo. L.J. 871, 883 (2004). 

Mark Hanna, McKinley’s campaign manager, 

famously said, “There are two things that are 

important in politics. The first is money, and I can’t 

remember what the second is.” Melvin I. Urofsky, 

Money and Free Speech: Campaign Finance Reform 

and the Courts 3 (2005). Consistent with that 

approach to government—which was exactly what 

the Founders feared—Hanna’s extensive fundraising 
16

efforts brought McKinley to the White House. 

Hanna solicited contributions from corporate leaders, 

irrespective of their party affiliation, while informing 

them of the contributions their peers and competitors 

had already made. Sitkoff, supra, at 1133. In doing 

so, he essentially “taxed” large corporations and 

financiers for contributions to support his 

candidates. See id. at 1132.

Tapping into such reservoirs of great wealth 

allowed the Republican Party to “open[] up a 

tremendous money advantage over the Democrats.” 

Richard Briffault, Life of the Parties? Money, Politics, 

and Campaign Finance Reform, 8 Election L.J. 207, 

211 (2009). Hanna raised “as much as $7 million,” 

Bradley A. Smith, The Sirens’ Song: Campaign 

Finance Regulation and the First Amendment, 6 J.L. 

& Pol’y 1, 10 (1997), an extraordinary sum 

equivalent, as a percentage of gross domestic 

product, to about $3 billion in today’s dollars. See 

also Jackson Lears, Rebirth of a Nation: The Making 

of Modern America, 1877-1920, at 188 (2009). One 

historian estimates that the McKinley campaign 

outspent William Jennings Bryan by ten-to-one. 

Winkler, supra, at 884. 

So important was Hanna’s fundraising to the 

McKinley campaign that critics saw “[t]he candidate 

[as] swallowed by the manager.” Alfred Henry 

Lewis, Mark Hanna, M’Kinley, and the Labor 

Unions, News & Observer (Raleigh, N.C.), Aug. 9, 

1896, at 2. McKinley’s subsequent narrow victory 

spurred calls for campaign finance reform that were 

central to the platform espoused by Progressive Era 
17

reformers. Burt Neuborne, Felix Frankfurter’s 

Revenge: An Accidental Democracy Built by Judges, 

35 N.Y.U. Rev. L. & Soc. Change 602, 648 (2011). 

Prominently, at the beginning of the twentieth 

century, President Theodore Roosevelt recognized 

the need for campaign finance reform and called for 

legislation to ban corporate contributions for political 

purposes. He advocated the establishment of 

meaningful contribution limits and the public 

financing of campaigns, expressing embarrassment 

over the corporate financing of his own campaign for 

the Presidency. See Kate Pickert, Campaign 

Financing: A Brief History, Time (June 30, 2008), 

http://www.time.com/time/nation/article/0,8599,1819

288,00.html (noting Roosevelt was accused of 

“promis[ing] a French ambassadorship to a senator 

from New York in exchange for $200,000 in big 

business campaign donations”). In his 1907 State of 

the Union address, President Roosevelt proclaimed: 

The need for collecting large campaign 

funds would vanish if Congress 

provided an appropriation for the proper 

and legitimate expenses of each of the 

great national parties, an appropriation 

ample enough to meet the necessity for 

thorough organization and machinery, 

which requires a large expenditure of 

money. Then the stipulation should be 

made that no party receiving campaign 

funds from the Treasury should accept 

more than a fixed amount from any 

individual subscriber or donor; and the 
18

necessary publicity for receipts and 

expenditures could without difficulty be 

provided. 

Theodore Roosevelt, President of the U.S., State of 

the Union Address (Dec. 3, 1907). 

 Roosevelt’s call for meaningful contribution 

limits followed from his belief that large 

contributions necessarily corrupted government and 

undermined public faith in the government’s 

integrity. He called such contributions “sins which 

[America] treats as most abhorrent,” going on to say 

that “we are peculiarly sensitive about big money 

contributions for which the donors expect any 

reward.” See Theodore Roosevelt, Theodore 

Roosevelt: An Autobiography (1913). 

 Roosevelt’s encouragement led to passage of 

the Tillman Act of 1907. The Senate’s report on the 

legislation emphasized that the pitfalls of the use of 

money in the political process “are so generally 

recognized that the committee deem it unnecessary 

to make any argument in favor of the general 

purpose of this measure. It is in the interest of good 

government and calculated to promote purity in the 

selection of public officials.” S. Rep. No. 59-3056, at 2 

(1906). The Tillman Act’s prohibition on corporate 

campaign contributions was an effort to not only 

protect the integrity of the electoral process, but also 

to preserve its reputation in the eyes of the people. 

 For the same reasons, like legislation passed 

in the following decades. The Federal Corrupt 
19

Practices Act established campaign contribution 

limits for House general elections, Publicity of 

Political Contributions Act, Pub. L. No. 61-274, 36 

Stat. 822 (1910); was amended in 1911 to extend to 

Senate and primary elections, Pub. L. No. 62-32, 37 

Stat. 25 (1911); and in 1925 was extended to multistate parties and election committees, Pub. L. No. 

506, Title III, 43 Stat. 1070 (1925). It was followed 

by the Hatch Act of 1939, which prevented the 

leveraging of federal resources for partisan political 

gain by prohibiting civil servants from campaigning 

for elected office, Pub. L. No. 76-252, 53 Stat. 1147, 

as well as the Taft-Hartley Act in 1947, which 

prohibited unions and corporations from making 

independent campaign expenditures, Labor Relations 

Management Act, 1947 (“Taft-Hartley Act”), Pub. L. 

No. 80-101, 61 Stat. 136. Each of these statutes 

sought to prevent the undue influence of large donors 

and special interests on candidates and elected 

officials, lest such factions control government. 

ii) Campaign finance abuses in the 

Watergate Era and the post-Watergate 

reforms 

 Over the course of President Nixon’s first 

term and into his 1972 reelection campaign, 

extensive campaign finance abuses again rocked 

Americans’ faith in the political system. Months of 

investigation in connection with the Watergate 

scandal revealed a series of exchanges of government 

favors for outsized campaign contributions: a 

$300,000 contribution for a nomination to the 

Luxembourg Ambassadorship, a $400,000 pledge to 
20

the 1972 Republican convention by ITT in exchange 

for settling several antitrust matters on favorable 

terms, and a $2 million contribution pledge for $100 

million in price supports for milk.9 These revelations 

and the others that led to President Nixon’s 

resignation “disastrously undermined public respect 

and confidence in government leaders, . . . and . . . 

demoralized and disillusioned the youth, in 

particular, whose commitment to ‘the system’ . . . 

[was] pushed to an all-time low.” Roger G. Dunham 

& Armand L. Mauss, Waves from Watergate: 

Evidence Concerning the Impact of the Watergate 

Scandal upon Political Legitimacy and Social 

Control, 19 Pac. Soc. Rev. 469, 469-70 (1976). 

The impact of this disillusionment was both 

exceptional and lasting. “In 1964, only 29 percent of 

the American electorate agreed that ‘the government 

is pretty much run by a few big interests looking out 

for themselves.’ By 1984, that figure had risen to 55 

percent.” Susan J. Pharr, Robert D. Putnam & 

Russell J. Dalton, A Quarter-Century of Declining 

Confidence, 11 J. Democracy 5, 10 (2000). The 

electorate’s cynicism was directed not only at the 

President but politicians generally, as well as to their 

parties and the electoral process. See Paul M. 

Sniderman et al., Stability of Support for the 

Political System, 3 Am. Pol. Q. 437, 455 (1975). 

 9 Ciara Torres-Spelliscy, How Much Is An 

Ambassadorship? And the Tale of How Watergate Led to a 

Strong Foreign Corrupt Practices Act and a Weak Federal 

Election Campaign Act, 16 Chap. L. Rev. 71, 82, 87-89, 92 

(2012). 
21

The Federal Election Campaign Act of 1971 

(“FECA”) was designed to increase public confidence 

in government and prevent corruption by increasing 

disclosure of federal campaign contributions. 

Legislative reports from both houses of Congress 

discussed the corruptive influence of untrammeled 

campaign spending on the political process, 

acknowledging that the appearance of corruption is 

as harmful to democratic governance as actual 

corruption, because the People’s trust is necessary 

for democracy to function. See, e.g., S. Rep. No. 92-

229, at 1851-52 (1971) (supplemental views of 

Messrs. Prouty, Cooper & Scott) (“Democracy 

succeeds only where citizens have faith and trust in 

their Government and its elected officials. . . . [This 

legislation] can be the most effective method for 

restoring to the public the confidence necessary for 

democracy to work.”). By making the political 

process more transparent and campaign 

contributions less clandestine, Congress sought to 

protect that necessary confidence. 

 But, in the wake of the Watergate scandal, 

Congress determined that increased transparency 

was not sufficient; more fulsome disclosure 

requirements without effective contribution limits 

would not adequately check the influence of money in 

elections and government. Congress therefore 

returned to FECA, and in 1974, amended the Act to 

include such limits. The legislative history shows 

that the contribution limits were again intended to 

address concern for the integrity of the election 

process and the public’s perception of the influence of 
22

money on elections and elected officials. As 

emphasized in one hearing, “It is crucial that we 

make our regulation of contributions and 

expenditures effective so that our citizens do not 

receive, or believe they have been duped by, a billion 

dollar fraud.” Federal Election Reform, 1973: 

Hearings Before the Subcomm. on Privileges & 

Elections of the Committee on Rules & Admin., 93d 

Cong. 15 (1973) (statement of Sen. Mathias). 

 The House reported, “Under the present law 

the impression persists that a candidate can buy an 

election by simply spending large sums in a 

campaign.” H.R. Rep. No. 93-1239, at 3 (1974). 

“Contribution limitations should restore public 

confidence by eliminating or reducing public 

suspicion that candidates are being ‘bought’ or 

influenced by large campaign contributions.” Id. at 

115 (minority views). The Senate agreed, stating 

that “[s]urely, in the interest of protecting the 

integrity of the elective process, there is a right to 

exercise reasonable control over the amount of 

money which may be poured into an election 

campaign.” S. Rep. No. 93-310, at 6 (1973). The 

legislature put its emphasis on protecting the faith of 

the People in the democratic process, and believed 

that limiting the size of contributions to candidates 

and political committees was the way to achieve that 

goal. 

 The legislators also recognized that 

contribution limits would encourage greater political 

activity by individuals who would otherwise be 

discouraged from participating by the perception 
23

that large donors had overwhelming influence on the 

elective process. As Representative Gaydos stressed, 

such apathy “is a problem that concerns all of us. 

The setting of very low limits on individual 

contributions should serve to convince these 

individuals that they should take a more active part 

in election campaigns.” 120 Cong. Rec. 27228 (1974) 

(statement of Rep. Gaydos). 

 A generation later, Congress amended FECA 

once more via the Bipartisan Campaign Reform Act 

of 2002 (“BCRA”). Through BCRA, Congress placed 

limits on the contributions that could be made by 

interest groups to national political parties with the 

goal of restoring the public’s confidence in America’s 

representative democracy. As the Committee on 

House Administration reported: 

It is our concern that the presumption 

of fairness has been seriously eroded . . . 

by the large sums of money raised and 

spent in today’s elections. And it is 

futile to try to sort out how much of this 

erosion is justified by reality and how 

much of it is simply a perception; both 

pose serious problems for our 

democracy. For as the sense of 

legitimacy of our elections is eroded, so 

too is the fundamental legitimacy of 

government itself. . . . People believe . . 

. that campaign contributions seem to 

determine political outcomes more than 

voting. No accusation cuts deeper 

because when money and privilege 
24

replace votes, the social contract 

underlying the political system is 

abrogated. Influenced by this 

widespread perception, people decide 

that voting doesn’t really count anymore 

— so why bother? 

H.R. Rep. No. 103-375, at 29 (1993) (citation 

omitted). In passing BCRA, Congress determined 

that the appearance of capture by wealthy factions 

was just as troublesome as actual capture, since the 

belief that the political process is controlled by those 

with outsized wealth delegitimizes democracy and 

discourages participation. 

 Representative Shays agreed with the 

Committee: “[T]his legislation aims to restore public 

faith in our democracy. . . . We have a historic 

opportunity here not only to end the appearance of 

corruption, but to reinvigorate our democracy by 

making individual citizens’ votes count, and by 

encouraging the most qualified candidates to run for 

election.” 148 Cong. Rec. 1306 (2002) (statement of 

Rep. Shays). Senators and Representatives alike 

joined in this sentiment, stating, “The appearance of 

corruption is rampant in our system, and it touches 

virtually every issue that comes before us,” 147 Cong. 

Rec. 3865 (2001) (statement of Sen. Feingold); “Our 

representative democracy is harmed by eroding 

participation,” 147 Cong. Rec. 5198 (2001) (statement 

of Sen. Kohl); “It is not unreasonable that the public 

perception of even the appearance of corruption 

erodes public confidence in the integrity of our 

electoral process and the independence of our 
25

democracy,” 148 Cong. Rec. 3559 (2002) (statement of 

Sen. Dodd); and “Our election laws were designed to 

protect the public’s confidence in our democratically 

elected officials,” 148 Cong. Rec. 3575 (2002) 

(statement of Rep. Levin). 

 The concerns that motivated Congress in 

establishing limits on contributions were thus 

exactly the same concerns that the Founders had 

with respect to factions. Congress acted to preserve 

the integrity of government and the People’s faith in 

it—just as the Founders had. 

II. Preventing Corruption and the 

Appearance of Corruption Are Aspects of 

a More Fundamental Governmental 

Interest in Preserving the Integrity of 

Self-Government. 

A. This Court has long recognized these 

interests as being the basis on which 

contribution limits are upheld. 

Consistent with the history described above, 

this Court has repeatedly identified the prevention of 

government corruption and the appearance of such 

corruption—as those terms were understood by the 

Founders—as compelling interests which Congress 

can further through campaign contribution limits. 

See Citizens United v. FEC, 558 U.S. 310, 345 (2010); 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 478 

(2007); Randall v. Sorrell, 548 U.S. 230, 248 (2006); 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 388 

(2000). In Buckley v. Valeo, 424 U.S. 1, 26 (1976), 
26

the Court found it “unnecessary to look beyond the 

Act’s primary purpose—to limit the actuality and 

appearance of corruption resulting from large 

individual financial contributions—in order to find a 

constitutionally sufficient justification for the $1,000 

contribution limitation” and associated aggregate 

limits. 

The interest of the legislature in preventing 

actual corruption of government is evident and has 

consistently been identified as compelling by this 

Court. In the Court’s words, the “importance of the 

governmental interest in preventing [corruption of 

elected representatives through the creation of 

political debts] has never been doubted.” See FEC v. 

Nat’l Right to Work Comm., 459 U.S. 197, 208 (1982) 

(quoting First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 

765, 788 n.26 (1978)). 

Like the Founders, this Court has recognized 

that the importance of combating the appearance of 

corruption has traditionally not been limited merely 

to addressing the perception that some individual 

members of government may be corrupt. Rather, the 

appearance of corruption encompasses public 

perceptions of systemic compromises to the integrity 

of government through government by factions. 

Such concerns are driven by the fundamental 

interest in preserving necessary public confidence in 

the democratic concept that members of government 

actually represent the People as a whole. 

As emphasized by this Court in FEC v. 

National Right to Work Committee, “These interests 

directly implicate the integrity of our electoral 
27

process, and, not less, the responsibility of the 

individual citizen for the successful functioning of 

that process.” 459 U.S. 197, 208 (1982) (internal 

quotation marks omitted). Public confidence in the 

system of government is the ultimate interest on 

which a government can legislate because it is firmly 

based in constitutional bedrock, and because public 

engagement in self-government is impossible without 

it. The legitimacy of the government legislating to 

protect public confidence in the system of 

government was recognized by this Court in Ex parte 

Yarbrough, 110 U.S. 651, 658 (1884), when it stated 

that “[i]f it has not this power it is left helpless before 

the two great natural and historical enemies of all 

republics, open violence and insidious corruption.”10

 10 As discussed more fully above, see supra Part I, the 

origin of this fundamental interest can be traced back to the 

Declaration of Independence and the struggle of colonial 

America in freeing itself from the rule of a King and the 

aristocratic class in England. The republican form of 

government as provided for by the Constitution and the rights 

enshrined by the First Amendment were the means by which 

the Founders sought to ensure government by the People, free 

from a governing elite. The same concern for government by 

the People animated campaign finance reform in the years after 

the Civil War era, when rapid industrial expansion led to the 

concentration of wealth in the hands of a few. As observed by 

the Supreme Court, “[n]o less lively [an issue than abusive 

monopolies], although slower to evoke federal action, was 

popular feeling that aggregated capital unduly influenced 

politics, an influence not stopping short of corruption.” United 

States v. Automobile Workers, 352 U.S. 567, 570 (1957). “[T]he 

power of wealth threatened to undermine the political integrity 

of the Republic.” Id. (quoting 2 Samuel Eliot Morison & Henry 

Steele Commager, The Growth of the American Republic 355 

(4th ed. 1950)). 
28

The concern now, as in all periods of our 

nation’s history, is that citizens who do not believe 

that their government represents them, or that it is 

not responsive to their needs, have no interest in 

remaining bound to that polity’s rules and values. 

As this Court also said in Ex parte Yarbrough: 

In a republican government, like ours, 

where political power is reposed in 

representatives of the entire body of the 

people, chosen at short intervals by 

popular elections, the temptations to 

control these elections by violence and 

by corruption is a constant source of 

danger. 

Such has been the history of all 

republics, and, though ours has been 

comparatively free from both these evils 

in the past, no lover of his country can 

shut his eyes to the fear of future 

danger from both sources. . . . 

If the government of the United States 

has within its constitutional domain no 

authority to provide against these evils, 

if the very sources of power may be 

poisoned by corruption or controlled by 

violence and outrage, without legal 

 

This concern about concentration of power goes to the 

heart of the American experiment—preventing rule by a King 

or a factional elite and ensuring the government appears 

legitimate. 
29

restraint, then, indeed, is the country in 

danger, and its best powers, its highest 

purposes, the hopes which it inspires, 

and the love which enshrines it, are at 

the mercy of the combinations of those 

who respect no right but brute force, on 

the one hand, and unprincipled 

corruptionists on the other. 

110 U.S. at 666-67. 

B. Concerns about the perception of 

corruption are well founded. 

Recent polls show that voters again today 

generally assume a high degree of corruption in 

government and feel negatively toward money in 

politics. 

In a 2011 CNN Opinion Research Poll, twothirds of respondents agreed that “elections are 

usually for sale to the candidate who can raise the 

most money,” and eighty-six percent thought that 

“elected officials in the nation’s capital are mostly 

influenced by the pressure they receive from 

campaign contributors.” CNN Opinion Research 

Corporation, Poll: June 3-7, 2012, CNN.com 2 (June 

9, 2011), http://i2.cdn.turner.com/cnn/2011/images/

06/09/rel10d-2.pdf. A 2009 Rasmussen Poll found 

that fifty-seven percent of American adults believed 

political donors “get more than their money back in 

terms of favors from members of Congress.” Most 

Say Political Donors Get More than Their Money’s 

Worth, Rasmussen Reports (Feb. 9, 2009), 

http://www.rasmussenreports.com/public_content/
30

politics/general_politics/february_2009/most_say_

political_donors_get_more_than_their_money_s_wor

th. 

Likewise, sixty-six percent of those polled in a 

2013 Huffington Post poll believed that money spent 

on election advertising by independent groups, 

corporations and unions causes political corruption. 

Only fifteen percent of those polled believed that 

such money does not cause political corruption. See

Huffington Post & YouGov, Omnibus Poll, 

Huffington Post (Feb. 2013), 

http://big.assets.huffingtonpost.com/cftoplines_split1.

pdf; see also Emily Swanson, Campaign Finance Poll 

Finds Most Support Donation Limits, Huffington 

Post (Feb. 22, 2013), http://www.huffingtonpost.com/

2013/02/22/campaign-finance-poll_n_2743877.html. 

One cannot overstate the strength of the 

connection between the public perception of the 

corrupting influence of large campaign donations and 

the public’s faith that our republican democracy 

serves the will of the People. 

III. The Results of Striking Aggregate 

Contribution Limits Must Be Assessed 

Against This Background. 

A. Eliminating aggregate limits would 

render the underlying contribution limits 

virtually meaningless. 

As the lower court properly held, striking the 

aggregate contribution limits at issue on this appeal 

would facilitate easy circumvention of the underlying 
31

contribution limits that have long stood as a bulwark 

against government corruption and perceptions of 

corruption, rendering the underlying limits a dead 

letter. 

Without the aggregate limits, a wealthy donor 

in the 2013-14 election cycle could give $2,433,600 to 

all federal candidates of one party; $194,400 to the 

federal party; and $1,000,000 to the party’s state 

committees. See Notice of Price Index Adjustments 

for Contribution and Expenditure Limitations and 

Lobbyist Bundling Disclosure Threshold, 78 Fed. 

Reg. 8530, 8532 (Feb. 6, 2013). In all, a single donor 

could give $3,628,000 to benefit one party over the 

course of one election cycle—an amount more than 

70 times the median annual family income of just 

over $51,000. 

Similarly, were the aggregate limits 

eliminated, a donor hedging his or her bets by 

supporting both major parties could legally donate 

over $7.25 million in one federal election cycle—thus 

ensuring undue influence and access to elected 

officials regardless of which party prevailed. This is 

not a fanciful possibility; the Court has noted the 

prevalence of such bet-hedging, observing a decade 

ago that “more than half of the top 50 soft-money 

donors gave substantial sums to both major national 

parties, leaving room for no other conclusion but that 

these donors were seeking influence, or avoiding 

retaliation, rather than promoting any particular 

ideology.” McConnell v. FEC, 540 U.S. 93, 148 

(2003); see also id. at 147 (“[L]obbyists, CEOs, and 

wealthy individuals alike all have candidly admitted 

donating substantial sums of soft money to national 
32

committees not on ideological grounds, but for the 

express purpose of securing influence over federal 

officials.”). 

The likelihood of donors making six- and 

seven-figure donations would be compounded by the 

ability—and practical need—of federal candidates 

and officeholders to legally solicit such massive 

contributions. While federal law prohibits 

officeholders and candidates from soliciting “soft 

money” funds not subject to the federal “hard money” 

limits, see 2 U.S.C. § 441i(e), in the absence of 

aggregate limits, these solicitation restrictions would 

effectively be eliminated through the use of joint 

fundraising committees and internal party transfers. 

Joint fundraising committees are commonly 

used vehicles that allow candidates and other 

political committees to fundraise together; they allow 

donors to write the joint fundraising committee a 

single check equaling the “total amount that the 

contributor could contribute to all of the participants 

under the applicable limits” for all participating 

committees. 11 C.F.R. § 102.17(c)(5). Through the 

use of a joint fundraising committee, a single 

candidate could solicit multi-million dollar 

contributions, which donors could make with the 

stroke of a pen across a single check. As a formal 

legal matter, these funds would be allocated among 

the individual committees that effectively make up 

the joint fundraising committee. But because federal 

law permits unrestricted transfers between joint 

fundraising committee participants, see 2 U.S.C. 

§ 441a(a)(4); 11 C.F.R. § 110.3(c), and because 

electronic banking allows funds to be transferred and 
33

allocated instantaneously, a single donor’s sevenfigure check could be immediately disaggregated and 

reallocated to the national party committee to be 

used to promote the officeholder who solicited the 

check. 

Without aggregate limits, this system of 

effectively unlimited contributions would permit a 

tiny class of donors to wield vastly disproportionate 

influence over our elected representatives, 

encouraging the control of government by faction 

that has been feared and resisted since the founding 

of our government. 

B. Were contributions to candidates and 

parties effectively unlimited, they would 

follow the pattern of contributions to 

super PACs. 

Without aggregate limits, contributions to 

federal candidates and party committees would be 

effectively unlimited. Under such circumstances, 

donations to candidates and party committees would 

surely follow the existing pattern of unlimited 

contributions to super PACs, in which a tiny group of 

mega-donors has dramatically dominated all 

contribution activity. 

After the Court concluded in Citizens United 

that spending by groups formally independent of 

candidates would not give rise to quid pro quo

corruption, various lower court decisions permitted 

the creation of so-called “independent expenditureonly groups,” more commonly known as “super 

PACs.” See, e.g., SpeechNow.org v. FEC, 599 F.3d 
34

686 (D.C. Cir. 2010). Super PACs are subject to no 

contribution limits and have collected breathtaking 

sums from a very small number of donors in recent 

years. 

In 2012, just 1,578 donors who gave at least 

$50,000 to super PACs were responsible for more 

than $760 million in donations—or 89.3% of all 

donations to super PACs. A mere 304 donors who 

gave at least $500,000 were responsible for nearly 

$600 million in donations—or 69.5% of funds raised 

by super PACs. And a tiny group of only 159 

contributors, each of whom gave at least $1 million, 

was responsible for approximately $505 million in 

contributions to super PACs. This tiny faction, 

equivalent to about 0.00005% of the U.S. population, 

was responsible for nearly three in every five dollars 

donated to super PACs, or 58.9% of all contributions 

to the groups. See Blair Bowie & Adam Lioz, BillionDollar Democracy: The Unprecedented Role of Money 

in the 2012 Elections 8 (2013). 

Comparing this pattern of large donor 

domination of super PAC giving to small donor 

contributions to the presidential candidates is 

telling. Barack Obama and Mitt Romney combined 

to raise $313 million in small contributions of less 

than $200. While the precise number of these small 

donors cannot be ascertained because their donations 

are not itemized, a conservative estimate is that 

there were at least 3.7 million of these small donors. 

By contrast, it took fewer than three dozen large 

super PAC donors—thirty-two contributors, each 

giving an average amount of $9.9 million—to exceed 

the amount contributed by all small donors in the 
35

presidential race. Id. at 9. Similarly, House 

candidates raised nearly half—45%—of all individual 

contributions in 2012 from donors who gave less than 

$1,000, and Senate candidates raised more than a 

third—36%—of all individual contributions from 

donors who gave less than $1,000. See id. at 13. By 

contrast, super PACs raised nearly 94% of all of their 

funds from fewer than 5,000 donors who gave at 

least $5,000. Id. at 8. 

Without aggregate contribution limits in place, 

contributions to political committees and candidates 

would mirror the pattern of donations to super PACs. 

Overwhelmingly large contributions to candidates 

and parties from a handful of sources—solicited 

directly by federal candidates and officeholders—

would thus become the norm. 

C. Permitting a tiny class of donors making 

enormous contributions to dominate 

political giving would give rise to 

extraordinary corruption risks. 

Huge political contributions pose grave 

dangers to our democratic processes. This Court 

explained in Buckley that “contribution ceilings [are] 

a necessary legislative concomitant [to anti-bribery 

laws] to deal with the reality or appearance of 

corruption inherent in a system permitting unlimited 

financial contributions.” Buckley v. Valeo, 424 U.S. 

1, 28 (1976) (emphasis added). Only the combined 

operation of the underlying contribution limits and 

the aggregate limits challenged here has prevented 

such an inherently corrupt system of unlimited 

contributions flowing directly to candidates and 
36

parties. Even accepting, arguendo, that there are no 

corruption risks associated with the vastly 

disproportionate role that mere dozens of donors play 

with respect to nominally independent super PACs, 

it is clear that permitting the same domination of 

contributions made directly to candidates and parties 

would entail serious corruption risks. 

Allowing a tiny faction to dominate candidate 

and party funding to the same degree it dominates 

super PAC funding would inevitably lead to the 

control and perception of control by factions the 

Founders sought to avoid. The Court affirmed the 

threat of real or apparent corruption in such a 

system when it recognized the “substantial evidence 

. . . that large soft-money contributions to national 

political parties give rise to corruption and the 

appearance of corruption.” McConnell, 540 U.S. at 

154. As former Senator Alan Simpson (R-Wyo.) said, 

“Who, after all, can seriously contend that a $100,000 

donation does not alter the way [an elected official] 

thinks about—and quite possibly votes on—an 

issue?” Id. at 149. 

Ushering in a system of virtually unlimited 

direct contributions to candidates and parties would 

certainly give rise to pervasive perceptions of 

corruption among citizens. Such enhanced, 

widespread concerns would engender apathy, 

cynicism, and hopelessness toward our democratic 

processes, driving ordinary citizens out of the 

process. In the absence of aggregate contribution 

limits, a tiny handful of kingmakers—the dozens or 

hundreds of political donors capable of making 

seven-figure political contributions—would 
37

monopolize political fundraising and drown out the 

political voices of citizens of ordinary means, 

regardless of their political leanings, the strength of 

their beliefs, or the underlying soundness of their 

positions. Such a system would choke the robust 

public debate and principled government envisioned 

by the Founders. 

IV. The Validity of Campaign Contribution 

Limits Should Be Determined by a 

Review Cognizant of the Fundamental 

Interests in Maintaining Both the 

Integrity of Government and Public 

Confidence in that Government. 

In an unbroken line of precedent since 

Buckley, this Court has applied “closely drawn” 

scrutiny to contribution limits. The Court should 

reaffirm that closely drawn scrutiny is the 

appropriate standard for evaluating the 

constitutionality of contribution limits, and that 

contribution limits pass constitutional muster if they 

are “‘closely drawn’ to match a ‘sufficiently important 

interest.’” FEC v. Beaumont, 539 U.S. 146, 161-62 

(2003) (quoting Buckley, 424 U.S. at 25); see also 

Randall v. Sorrell, 548 U.S. 230, 247, 253 (2006) 

(applying “closely drawn” scrutiny). 

In scrutinizing the aggregate contribution 

limits at issue under this standard, the Court should 

be mindful of the paramount importance of the 

interests at stake. In our system of government, no 

interest can be more compelling than maintaining 

sovereignty in the whole People and their faith in the 

integrity of government. 
38

In the face of a challenge to aggregate 

contribution limits—long a bulwark against the 

power of factions and the erosive force of doubt and 

skepticism about our system of government—these 

compelling interests must be given their due weight. 

A failure to do so would have ruinous consequences 

for our system of government. 

 
39

CONCLUSION 

For the foregoing reasons, the decision of the 

United States District Court for the District of 

Columbia should be affirmed and the challenged 

biennial campaign contribution limits should be 

upheld as constitutional. 

 Respectfully submitted, 

DANIEL F. KOLB

 Counsel of Record 

JESSICA K. FOSCHI

MICHAEL E. MCGOVERN

450 Lexington Avenue 

New York, NY 10017 

daniel.kolb@davispolk.com 

(212) 450-4000 

J. ADAM SKAGGS

DAVID W. EARLEY

BRENNAN CENTER FOR 

JUSTICE AT N.Y.U.

SCHOOL OF LAW

161 Avenue of the 

Americas, 12th Floor 

New York, New York 

10013

Attorneys for Amicus 

Curiae