No. 12-536 

IN THE

Supreme Court of the United States _________ 

SHAUN MCCUTCHEON, ET AL., 

 Appellants,

v. 

FEDERAL ELECTION COMMISSION, 

 Appellee.

________ 

On Appeal from the United States District Court for 

the District of Columbia 

________ 

BRIEF OF DEMOCRATIC MEMBERS OF THE 

UNITED STATES HOUSE OF REPRESENTATIVES 

AS AMICI CURIAE IN SUPPORT OF APPELLEE 

________ 

PAUL M. SMITH

 Counsel of Record 

JESSICA RING AMUNSON

NEAL R. UBRIANI* 

JENNER & BLOCK LLP

1099 New York Avenue, N.W. 

Washington, DC 20001 

(202) 639-6000 

psmith@jenner.com 

*Admitted only in New York; 

supervised by principals of the Firm
 

TABLE OF CONTENTS 

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

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

SUMMARY OF ARGUMENT ..................................... 2

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

I. As a Matter of Stare Decisis, Relative 

Expertise, and Democratic Accountability, 

This Court Should Continue Its Deference to 

the Elected Branches on Contribution Limits. ..... 4

A. Under Buckley, Deferential Review 

Applies to Contribution Limits 

Generally. .......................................................... 4

B. The Aggregate Contribution Limits at 

Issue Here are Plainly Constitutional 

Under Buckley’s Deferential Standard 

of Review. .......................................................... 8

C. As a Matter of Relative Expertise and 

Democratic Accountability, the 

Judiciary Should Defer to the Elected 

Branches’ Determination that 

Contribution Limits are Needed. ................... 12

II. Contribution Limits in General, and Aggregate 

Contribution Limits in Particular, Remain 

Critical to Fighting the Actuality or 

Appearance of Corruption. .................................. 20
ii 

A. Contribution Limits are Justified by the 

Interest in Preventing Both the 

Actuality and the Appearance of 

Corruption. ...................................................... 22

B. Aggregate Contribution Limits are a 

Necessary Part of the Closely Drawn 

System for Avoiding Corruption. ................... 26

C. Aggregate Limits Also Prevent 

Institutional Corruption. ................................ 31

CONCLUSION .......................................................... 34

APPENDIX ................................................................ 1a
iii 

TABLE OF AUTHORITIES 

CASES 

Buckley v. Valeo, 424 U.S. 1 (1976) ............. passim

California Medical Ass’n v. FEC, 453 U.S. 

182 (1981) ......................................................... 22 

Citizens United v. FEC, 558 U.S. 310 

(2010) ...................................................... 7, 23, 24 

Colegrove v. Green, 328 U.S. 549 (1946) ................ 8 

Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604 (1996) ... 22, 23 

Davis v. FEC, 554 U.S. 724 (2008) ............... 4, 8, 16 

Eu v. San Francisco County Democratic 

Central Committee, 489 U.S. 214 (1989) ........ 27 

FEC v. Colorado Republican Federal 

Campaign Committee, 533 U.S. 431 

(2001) .......................... 5, 7, 22, 23, 25, 26, 27, 29 

FEC v. National Conservative Political 

Action Committee, 470 U.S. 480 (1985) .......... 14 

McConnell v. FEC, 251 F. Supp. 2d 176 

(D.D.C. 2003), aff’d in part, rev’d in part, 

540 U.S. 93 (2003) .......................... 14, 21, 28, 33 

McConnell v. FEC, 540 U.S. 93 (2003), 

overruled on other grounds by Citizens 

United v. FEC, 558 U.S. 310 (2010) ........ passim 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) .......................... 7, 17, 20, 22 

Randall v. Sorrell, 548 U.S. 230 

(2006) .............................................. 5, 6, 8, 14, 15 
iv 

Regan v. Time, Inc., 468 U.S. 641 (1984) ............. 19 

STATUTES AND REGULATIONS 

2 U.S.C. § 441a(a)(4-5) .......................................... 27 

2 U.S.C. § 431(8)(B) ............................................... 10 

11 C.F.R. § 102.17 ................................................. 29 

11 C.F.R. § 110.5 ................................................... 11 

LEGISLATIVE MATERIALS 

32 Congressional Quarterly Almanac 459 

(1976) ................................................................ 14 

120 Cong. Rec. 35,135-56 (1974) ..................... 17, 31 

OTHER AUTHORITIES 

2012 Top Overall Individual Contributors,

OpenSecrets.org, http://www. 

opensecrets.org/overview/topindivs_over

all.php (last visited July 22, 2013) .................. 24 

Associated Press National Constitution 

Poll, Sept. 17, 2012, available at Polling 

the Nations, http://poll.orspub.com/ 

document.php?id=quest12.out_1447&typ

e=hitlist&num=0 (last visited July 22, 

2013) ................................................................. 18 

CBS News / New York Times Poll, Jan. 18, 

2012, available at Polling the Nations, 

http://poll.orspub.com/document.php?id=

quest12.out_11751&type=hitlist&num=0 

(last visited July 22, 2013) .............................. 18 
v 

Democracy Corps Poll, Nov. 9, 2012, 

available at Polling the Nations, 

http://poll.orspub.com/document.php?id=

quest12.out_1453&type=hitlist&num=0 

(last visited July 22, 2013) .............................. 18 

Democracy Corps Poll, Nov. 9, 2012, 

available at Polling the Nations, 

http://poll.orspub.com/document.php?id=

quest12.out_1455&type=hitlist&num=6 

(last visited July 22, 2013) .............................. 25 

Democratic Senatorial Campaign Cmte: 

Contributions to Candidates,

OpenSecrets.org, http://www.open 

secrets.org/parties/recipients.php?cycle=

2012&cmte=DSCC (last visited July 22, 

2013) ................................................................. 28 

Lee Drutman, The Political 1% of the 1% in 

2012, Sunlight Foundation Blog (June 

24, 2013, 9:00AM), http://sunlight 

foundation.com/blog/2013/06/24/1pct_of_

the_1pct/ ........................................................... 11 

House Race Ratings, N.Y. Times,

http://elections.nytimes.com/2012/rating

s/house (last visited July 22, 2013) ................. 32 

Lawrence Lessig, What an ‘Originalist’ 

Would Understand ‘Corruption’ to Mean, 

Cal. L. Rev. (forthcoming 2013), 

available at http://ssrn.com/abstract 

=2257948 .................................................... 31, 32 

Harold Leventhal, Courts and Political 

Thickets, 77 Colum. L. Rev. 345 (1977) .......... 12 
vi 

National Republican Senatorial Cmte: 

Contributions to Candidates, 

OpenSecrets.org, http://www.open 

secrets.org/parties/recipients.php?cmte=

NRSC&cycle=2012 (last visited July 22, 

2013) ................................................................. 28 

David M. Primo et al., State Campaign 

Finance Reform, Competitiveness, and 

Party Advantage in Gubernatorial 

Elections, in The Marketplace of 

Democracy 268 (Michael P. McDonald & 

John Samples eds., 2006), available at 

http://www.campaignfreedom.org/doclib/

20090916_Milyo2004GovStateElecs.pdf ......... 16 

Rasmussen Reports Poll, July 10, 2009, 

available at Polling the Nations,

http://poll.orspub.com/document.php?id=

quest09.out_14739&type=hitlist&num=0

(last visited July 22, 2013) .............................. 18 

Rasmussen Reports Poll, July 10, 2009, 

available at Polling the Nations,

http://poll.orspub.com/document.php?id=

quest09.out_14740&type=hitlist&num=1 

(last visited July 22, 2013) .............................. 25 

Senate Race Ratings, N.Y. Times,

http://elections.nytimes.com/2012/rating

s/senate (last visited July 22, 2013) ................ 32 

Spending in Key House and Senate Races, 

Wash. Post, Nov. 8, 2012, available at

http://www.washingtonpost.com/wpsrv/special/politics/key-race-spending/ ........... 25 
vii 

The 2012 Money Race: Compare the 

Candidates, N.Y. Times, 

http://elections.nytimes.com/2012/campa

ign-finance (last visited July 22, 2013) ........... 24 

Thomas Stratmann, Do Low Contribution 

Limits Insulate Incumbents from 

Competition?, 9 Election L.J. 125 (2010) ........ 16 

Ciara Torres-Spelliscy et al., Brennan 

Center for Justice, Electoral Competition 

and Low Contribution Limits (2009), 

available at http://www.brennan 

center.org/sites/default/files/legacy/publi

cations/Electoral.Competition.pdf ............. 15, 16 

Zogby International Poll, Apr. 12, 2001, 

available at Polling the Nations,

http://poll.orspub.com/document.php?id= 

quest01.out_2937&type=hitlist&num=2 

(last visited July 22, 2013) .............................. 25 
 

INTEREST OF AMICI CURIAE1

Amici curiae are Democratic Members of the 

United States House of Representatives, many of 

whom were actively involved in the passage of the 

Bipartisan Campaign Reform Act of 2002, Pub. L. 

No. 107-155, 116 Stat. 81 (“BCRA”). A complete list 

of the 85 Members of the House of Representatives 

participating as amici is provided in an appendix to 

this brief. 

Amici are concerned about the continued vitality 

of BCRA’s provision on aggregate campaign 

contributions and wish to preserve their ability to 

impose contribution limits to avoid both the actuality 

and appearance of corruption in politics. Amici bring 

to this Court the unique perspective of elected 

Members of Congress who are intimately familiar 

with the role that money plays in politics and who 

are deeply committed to maintaining public trust in 

the democratic process. 

 

 

1 Letters from the parties consenting to the filing of this brief 

are on file with the Clerk. No counsel for a party authored this 

brief in whole or in part, and no counsel or party made a 

monetary contribution intended to fund the preparation or 

submission of this brief. No person other than amici curiae and 

their counsel made a monetary contribution to the preparation 

or submission of this brief.
2 

SUMMARY OF ARGUMENT 

Amici curiae submit this brief in support of 

Appellee urging affirmance of the District Court’s 

decision upholding the constitutionality of the 

aggregate limit provision—Section 307(b)—of 

BCRA. 

As the District Court found, the aggregate 

contribution limits at issue here are closely drawn to 

further the important interest in preventing 

corruption, which justifies the minimal, indirect 

First Amendment burden imposed on those who seek 

to contribute in excess of the contribution limits. 

Continued adherence to Buckley v. Valeo, 424 U.S. 1 

(1976)—holding that contribution limits, including 

aggregate limits, receive intermediate scrutiny—is 

likewise justified by stare decisis as well as the 

deference to which Congress is entitled as a matter 

of relative expertise and democratic accountability. 

Appellants urge this Court to disregard Buckley, 

which for nearly four decades has served as the core 

doctrinal framework for reviewing campaign finance 

laws. Congress and state legislatures have regulated 

against this backdrop for decades, and this Court 

itself has held that stare decisis necessitates 

adherence to the Buckley framework. 

The longstanding deference afforded to Congress’ 

decision to enact contribution limits is well founded. 

Elected Members of Congress, not unelected judges, 

possess expertise in the machinery of elections and 

the behavior of political actors. And it is elected 

Members of Congress, not unelected judges, who are 

best suited to determine the adequacy of contribution 
3 

limits to combat corruption of the democratic 

process. 

Rather than reflecting an incumbent protection 

scheme, as some have claimed, these contribution 

limits reflect the American people’s demands for 

more accountability from their leaders. This Court 

should honor this promise to amici’s constituents and 

reject Appellants’ request to preclude the 

democratically elected branches from legislating to 

stem the corrosive influence of money on politics. 

As this Court has continually recognized, 

contribution limits serve the important 

governmental interest of preventing real or apparent 

corruption. The corruption attacked by these limits 

includes not merely quid pro quo and outright 

bribery, but also extends to the undue influence 

exerted by large contributors. These threats of 

corruption, which were the impetus for campaign 

finance reform, remain very real today. 

Aggregate limits in particular play a crucial role 

in preventing corruption or its appearance. First, 

aggregate limits buttress the base contribution 

limits, preventing circumvention of these primary 

limits. Second, aggregate limits are essential to 

preventing “dependence corruption,” whereby 

government institutions become answerable to the 

narrow interests of a select group of elite 

contributors rather than responsive to the American 

public as a whole. Elimination of these limits would 

strip away a crucial limit on corruption, potentially 

unraveling the entire campaign finance regime. 
4 

ARGUMENT 

I. As a Matter of Stare Decisis, Relative 

Expertise, and Democratic Accountability, This 

Court Should Continue Its Deference to the 

Elected Branches on Contribution Limits. 

Appellants ask this Court to cast aside its 

longstanding doctrinal framework in favor of acrossthe-board strict scrutiny of campaign finance 

regulations. Precedent dictates, however, that 

contribution limits receive an intermediate level of 

scrutiny, affording Congress greater deference in 

enacting contribution limits than expenditure limits. 

This deference properly allocates regulatory 

authority to Congress, the institution best equipped 

to police the corrupting effects of money in politics. 

Furthermore, Congress and state legislatures have 

legislated against the Buckley doctrinal backdrop for 

decades. Given that neither Appellants nor their 

amici present changed circumstances or new 

arguments that Buckley failed to consider, this Court 

should adhere to the settled rule that contribution 

limits—including aggregate limits—receive 

deferential review.

A. Under Buckley, Deferential Review Applies to 

Contribution Limits Generally. 

“When contribution limits are challenged as too 

restrictive, [this Court] ha[s] extended a measure of 

deference to the judgment of the legislative body that 

enacted the law.” Davis v. FEC, 554 U.S. 724, 737 

(2008). This deferential standard of review 

originated in Buckley, which held that a contribution 

limit “entails only a marginal restriction upon the 
5 

contributor’s ability to engage in free 

communication,” in sharp contrast with the heavy 

burden on First Amendment rights imposed by an 

expenditure limit. 424 U.S. at 20-21. 

Buckley required that contribution limits be 

“closely drawn” to further a “sufficiently important 

interest.” Id. at 25. This standard is meaningfully 

different from the strict scrutiny applied to 

expenditure limits. For example, “the dollar amount 

[of a contribution limit] need not be ‘fine tuned.’” 

FEC v. Colo. Republican Fed. Campaign Comm., 533 

U.S. 431, 446 (2001) (“Colorado II”) (quoting Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-88 (2000)). 

When it comes to contribution limits, “even

significant interference with associational rights is 

nevertheless valid if it satisfies the lesser demand of” 

intermediate scrutiny. McConnell v. FEC, 540 U.S. 

93, 136 (2003) (emphasis added) (internal quotation 

marks and citations omitted), overruled on other 

grounds by Citizens United v. FEC, 558 U.S. 310 

(2010). Courts thus “respect Congress’ decision to 

proceed in incremental steps,” and “give deference to 

[the] congressional determination of the need for [a] 

prophylactic rule” when examining provisions 

intended to prevent circumvention of other lawful 

limits. Id. at 158, 171 (internal quotation marks and 

citations omitted). 

For 37 years this Court has adhered to the 

Buckley contribution-expenditure dichotomy. In 

Randall v. Sorrell, the Court stated that stare decisis 

was “especially [applicable] where, as here, the 

[standard of review] has become settled through 

iteration and reiteration over a long period of time.” 
6 

548 U.S. 230, 244 (2006) (emphasis added). In 

declining to overrule Buckley, the Court emphasized 

that “Buckley has promoted considerable reliance. 

Congress and state legislatures have used Buckley

when drafting campaign finance laws. And, as we 

have said, this Court has followed Buckley,

upholding and applying its reasoning in later cases. 

Overruling Buckley now would dramatically 

undermine this reliance on our settled precedent.” 

Id.; see also McConnell, 540 U.S. at 137-38 (“[I]n its 

lengthy deliberations leading to the enactment of 

BCRA, Congress properly relied on the recognition of 

its authority contained in Buckley and its progeny. 

Considerations of stare decisis, buttressed by the 

respect that the Legislative and Judicial Branches 

owe to one another, provide additional powerful 

reasons for adhering to the analysis of contribution 

limits that the Court has consistently followed since 

Buckley was decided.”). 

Nothing has changed to justify a departure from 

Buckley. Indeed, this Court has retained the 

Buckley framework over vigorous dissents raising 

the very same arguments that Appellants and their 

amici put forward now. See, e.g., McConnell, 540 

U.S. at 137 (“Our application of this less rigorous 

degree of scrutiny has given rise to significant 

criticism in the past from our dissenting colleagues. 

We have rejected such criticism in previous cases.” 

(internal citations omitted)). 

For example, Appellants’ amici raise the 

argument that the asymmetry between unlimited, 

third-party expenditures and restricted contributions 

renders the Buckley framework unworkable to the 
7 

detriment of candidates and parties. See, e.g., Br. for 

Wis. Inst. for Law and Liberty as Amici Curiae

Supporting Appellants at 3-5. This Court, however, 

has repeatedly rejected the argument that the 

Buckley dichotomy marginalizes parties or 

candidates in a constitutionally significant manner. 

See, e.g., Colorado II, 533 U.S. at 469-70 (Thomas, J., 

dissenting); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377, 415-18 (2000) (Thomas, J., dissenting).2

 

Appellants and their amici also suggest that Citizens 

United v. FEC, 558 U.S. 310 (2010), called into 

question the continued vitality of the Buckley

contribution-expenditure distinction. But the Court 

expressly declined to reach this question in Citizens 

United, and there is no reason to revisit it now. See 

558 U.S. 310, 359 (2010) (“Citizens United . . . has 

not suggested that the Court should reconsider 

whether contribution limits should be subjected to 

rigorous First Amendment scrutiny.”). 

This Court should thus adhere to stare decisis 

and refuse Appellants’ invitation to jettison the 

Buckley standard of review for contribution limits. 

Buckley remains the paramount statement of First 

Amendment principles in the campaign finance 

realm, and for nearly four decades legislators have 

relied on this doctrinal backdrop. Appellants fail to 

 

2 Furthermore, should Congress determine that a problematic 

asymmetry exists, it remains free to increase statutory 

contribution limits to normalize the ratio between coordinated 

and uncoordinated funding. The Court need not 

constitutionalize a requirement that coordinated and 

uncoordinated spending be equalized, given the lesser First 

Amendment burden imposed by limits on the former.
8 

raise any new developments that provide “the strong 

justification that would be necessary to warrant 

overruling so well established a precedent.” Randall, 

548 U.S. at 244. A departure from longstanding, 

settled law now would be difficult to explain, 

undermining the legitimacy of judicial review of 

campaign finance regulations and creating the 

perception that the Court is entering the “political 

thicket.” Colegrove v. Green, 328 U.S. 549, 556 

(1946). 

B. The Aggregate Contribution Limits at Issue 

Here are Plainly Constitutional Under 

Buckley’s Deferential Standard of Review. 

Under the standard of review established in 

Buckley and continually reaffirmed by this Court, 

the aggregate contribution limits at issue here pose 

no constitutional problem. As established above, 

Buckley requires intermediate scrutiny when 

reviewing aggregate contribution limits. In 

considering the original $25,000 aggregate 

contribution limit, the Buckley Court applied only 

deferential intermediate scrutiny, rather than the 

strict scrutiny required for expenditure limits. 

Buckley, 424 U.S. at 38; see also Davis, 554 U.S. at 

737 (“This Court has previously sustained the facial 

constitutionality of limits on discrete and aggregate

individual contributions and on coordinated party 

expenditures.” (emphasis added)). This conclusion 

squarely controls the instant case. Thus, despite 

Appellants’ claims that heightened scrutiny applies, 

this Court has already refused to credit the 

argument that “aggregate limits impose greater 

speech burdens than base limits,” Br. on the Merits 
9 

for Appellant Republican Nat’l Comm. at 12 (“RNC 

App. Br.”). 

Buckley expressly considered and rejected the 

claim that aggregate limits require heightened 

scrutiny, holding that “[t]he limited, additional 

restriction on associational freedom imposed by the 

overall ceiling . . . [is] constitutionally valid.” 424 

U.S. at 38. The Court found the theoretical 

differences between an aggregate and a base 

contribution limit unimportant to determining the 

appropriate level of First Amendment scrutiny, 

declaring the aggregate limit “no more than a 

corollary” of base limits. Id.3

Indeed, the aggregate contribution limits at issue 

function like a base contribution limit, not an 

expenditure limit. Like a base contribution limit, 

and in contrast to an expenditure limit, the 

aggregate limit merely places a ceiling on one’s 

ability to fund the speech of another—so-called 

speech by proxy. The aggregate limit does not 

constrain one’s “freedom to discuss candidates and 

issues” directly, id. at 21, and “[it] leave[s] the 

 

3 Buckley did not condition this application of intermediate 

scrutiny to aggregate limits on the existence of massive, glaring 

loopholes allowing circumvention of the base contribution 

limits—loopholes Appellants and their amici contend are no 

longer as gaping as in 1976. Tailoring questions speak to 

whether the regulation meets the relevant scrutiny standard; 

they do not define the level of scrutiny applied. Thus, even if 

Appellants and their amici are correct that some of these 

loopholes have closed, the Buckley holding that aggregate 

contribution limits receive deferential review continues to 

control the instant case.
10 

contributor free to become a member of any political 

association and to assist personally in the 

association’s efforts on behalf of candidates.” Id. at 

22; see 2 U.S.C. § 431(8)(B) (excluding volunteer 

services and other means of association from 

“contribution” definition). 

Buckley acknowledged that an aggregate limit 

“does impose an ultimate restriction upon the 

number of candidates and committees with which an 

individual may associate himself by means of 

financial support,” yet it held that an aggregate 

contribution limit is a “quite modest restraint upon 

protected political activity.” 424 U.S. at 38. Thus, 

Appellants’ argument that “while base limits restrict 

how much one may contribute to particular 

candidates, political parties, or PACs, aggregate

limits restrict how many such entities one may 

support” has already been considered and rejected by 

this Court. RNC App. Br. at 9. 

Nor do aggregate limits hinder the ability to 

campaign effectively. They merely “require 

candidates and political committees to raise funds 

from a greater number of persons and to compel 

people who would otherwise contribute amounts 

greater than the statutory limits to expend such 

funds on direct political expression.” Buckley, 424 

U.S. at 21-22. Unlike an expenditure limit that 

prevents an individual from expressing his or her 

views, the aggregate limits simply require would-be 
11 

contributors to decide how to allot up to $123,200 in 

coordinated financial support.4

Furthermore, for the overwhelming majority of 

Americans, the First Amendment burden imposed by 

the aggregate ceilings is “merely theoretical,” in 

contrast with the “direct and substantial” restraint 

imposed by expenditure limits. Buckley, 424 U.S. at 

19. Only a miniscule number of contributors risk 

hitting the $123,200 aggregate ceiling on 

contributions. The median contribution for the top 

.01% of elite campaign contributors in 2012 was 

$26,584, well below either aggregate limit. See Lee 

Drutman, The Political 1% of the 1% in 2012, 

Sunlight Foundation Blog (June 24, 2013, 9:00 AM), 

http://sunlightfoundation.com/blog/2013/06/24/1pct_o

f_the_1pct/. 

“[D]istinctions in degree become significant only 

when they can be said to amount to differences in 

kind,” and an aggregate limit creates only a “limited, 

additional restriction on associational freedom” 

beyond that imposed by base contribution limits. 

Buckley, 424 U.S. at 30, 38. Thus, the modest, 

marginal, and indirect First Amendment burden an 

aggregate limit could theoretically visit on a small 

number of would-be contributors is immaterial to the 

 

4 During the 2013-2014 election cycle, one may contribute up to 

$123,200 if one maxes out under both the candidate committee 

contribution cap of $48,600 and the $74,600 cap on 

contributions to other committees. The $117,000 total cap used 

by the District Court reflects the 2011-2012 limits. The 

aggregate contribution limits are indexed to inflation. See 11 

C.F.R. § 110.5. 
12 

level of scrutiny applied. This Court should 

accordingly continue applying intermediate scrutiny 

to aggregate contribution limits and should uphold 

the limits at issue here. 

C. As a Matter of Relative Expertise and 

Democratic Accountability, the Judiciary 

Should Defer to the Elected Branches’ 

Determination that Contribution Limits are 

Needed. 

This Court should defer to Congress’ considered, 

bipartisan determination that contribution limits 

reduce corruption because Congress has more 

experience with campaign finance issues and better 

tools for predicting the effects of regulation. 

Empirical evidence demonstrates that contribution 

limits are actually antithetical to incumbent 

protection, leaving the judiciary no cause for 

suspicion of such enactments. Furthermore, this 

Court should leave room for “play in the joints” so 

that amici—the people’s democratically elected 

representatives—may respond to future 

developments in campaign tactics and the persistent 

ingenuity of those seeking to evade contribution 

limits. Harold Leventhal, Courts and Political 

Thickets, 77 Colum. L. Rev. 345, 348-49 (1977) 

(quoting J. Holmes). 

This Court has repeatedly recognized Congress’ 

expertise in the area of campaign finance regulation. 

McConnell explained that “[t]he less rigorous 

standard of review we have applied to contribution 

limits (Buckley’s ‘closely drawn’ scrutiny) shows 

proper deference to Congress’ ability to weigh 
13 

competing constitutional interests in an area in 

which it enjoys particular expertise.” 540 U.S. at 

137. McConnell further acknowledged that 

“Members of Congress have vastly superior 

knowledge” regarding “the function played by 

national committees and the interactions between 

committees and officeholders.” Id. at 158.

Predicting the precise ramifications of any 

campaign finance regulation is challenging. 

Nevertheless, the democratically elected branches 

remain relatively better equipped than members of 

the federal judiciary—the vast majority of whom 

have never campaigned for office—to make 

judgments about the deleterious effects of money in 

politics and the mechanisms needed to effectively 

combat corruption. Such regulation requires making 

difficult predictions about whether a given practice 

will lead to corruption, the probability of detecting 

corruption, the capacity to exploit loopholes, and the 

degree to which corruption will warp democratic 

decision-making. Given judges’ relative inexperience 

with campaigns, the judiciary “must accord 

substantial deference to the predictive judgments of 

Congress.” McConnell, 540 U.S. at 165 (quoting 

Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 

665 (1994)). 

Furthermore, unlike judges who must proceed 

case by case, Members of Congress are not so 

constrained and thus have the time and resources to 

make difficult decisions about the appropriate 

architecture of regulation. For example, in 

instituting the present system of regulation under 

BCRA, including the aggregate limits at issue here, 
14 

the Senate Committee on Governmental Affairs 

“issued a six-volume report summarizing the results 

of an extensive investigation into the campaign 

practices in the 1996 federal elections.” Id. at 129. 

All told, “the legislative process took over six years of 

study and reflection by Congress.” McConnell v. 

FEC, 251 F. Supp. 2d 176, 434 (D.D.C. 2003), aff’d in 

part, rev’d in part, 540 U.S. 93 (2003) (“McConnell

D.D.C.”).

Similarly, in 1976, when Congress bolstered the 

campaign finance regime post-Buckley, including 

deciding to leave the original aggregate limits intact, 

four committees considered the regime, the full 

House and Senate spent a total of seven days 

debating the legislation, and the chambers 

considered 40 amendments. 32 Congressional 

Quarterly Almanac 459, 462-471 (1976). “This 

thoughtful and careful effort by [the] political 

branches, over such a lengthy course of time, 

deserves respect.” McConnell D.D.C., 251 F. Supp. 

2d at 434. 

Deference is particularly appropriate when it 

comes to fine details like the shoring up of base 

limits with aggregate limits. Randall explained that 

courts “cannot determine with any degree of 

exactitude the precise restriction necessary to carry 

out the statute’s legitimate objectives. In practice, 

the legislature is better equipped to make such 

empirical judgments.” 548 U.S. at 248; see also FEC 

v. Nat’l Conservative Political Action Comm., 470 

U.S. 480, 501 (1985) (“We are not quibbling over finetuning of prophylactic limitations, but are concerned 
15 

about wholesale restriction of clearly protected 

conduct.”). 

Contrary to the suggestions of Appellants and 

their amici, there is no cause to suspect Congress 

enacted contribution limits as part of a bipartisan 

incumbent protection scheme. In Randall, the Court 

found that heightened judicial scrutiny may be 

justified where contribution limits are so low that 

they may “harm the electoral process by preventing 

challengers from mounting effective campaigns 

against incumbent officeholders, thereby reducing 

democratic accountability.” 548 U.S. at 248-49. This 

would indeed be a powerful reason not to defer to the 

legislative branch regarding a contribution limit, but 

for the fact that the incumbent protection theory is 

demonstrably false. 

The incumbent protection theory was, at best, 

disputed at the time of Randall. See id. at 287

(Souter, J., dissenting) (“The petitioners offered, and 

the plurality invokes, no evidence that the risk of a 

pro-incumbent advantage has been realized; in fact, 

the record evidence runs the other way, as the 

plurality concedes.”). Subsequent empirical research 

demonstrates that the Randall Court’s intuitions 

regarding the impact of contribution limits on 

electoral competition have not become reality. 

A 2009 study by the nonpartisan Brennan Center 

for Justice examined elections in 42 states over a 10 

year period, concluding that “the benefits of low 

contribution limits largely redound to 

challengers. . . . [T]he lower the contribution limit, 

the more competitive the election.” Ciara Torres-
16 

Spelliscy et al., Brennan Ctr. for Justice, Electoral 

Competition and Low Contribution Limits 2, 6

(2009), available at http://www.brennancenter.org/ 

sites/default/files/legacy/publications/Electoral.Comp

etition.pdf. The study found that contribution limits 

actually hurt incumbents, curbing the substantial 

fundraising advantage they enjoy over challengers.5 

See id. Lower contribution limits reduced the 

average margin of victory for incumbents, increased 

the likelihood of an incumbent having a viable 

challenger, and reduced the fundraising gap between 

challengers and incumbents. See id. at 7, 9. Thus, 

empirical research specifically designed to test the 

Randall Court’s theory has disproven the incumbent 

protection hypothesis. See also Thomas Stratmann, 

Do Low Contribution Limits Insulate Incumbents 

from Competition?, 9 Election L.J. 125, 139 (2010) 

(finding that “having a [campaign contribution limit] 

increases competitiveness” and that “lower limits 

lead to tighter elections”); David M. Primo et al., 

State Campaign Finance Reform, Competitiveness, 

and Party Advantage in Gubernatorial Elections, in

The Marketplace of Democracy 268, 277-78 (Michael 

P. McDonald & John Samples eds., 2006), available 

at http://www.campaignfreedom.org/doclib/20090916 

_Milyo2004GovStateElecs.pdf (“[I]individual 

contribution limits have a large, statistically 

 

5

 The incumbent protection theory was at least somewhat more 

plausible in the context of the Millionaire’s Amendment 

invalidated in Davis. See 554 U.S. at 738. That case presented 

the unusual scenario in which a challenger may possess a 

fundraising advantage over an incumbent because the 

challenger is self-financed. 
17 

significant, and negative effect on the size of the 

winning vote margin, implying an increase in 

competitiveness.”). 

Appellants present no reason to think that an 

aggregate contribution limit poses a distinct 

entrenchment harm from that alleged—but 

disproven—in the broader contribution limit context. 

And “[a]bsent record evidence of invidious 

discrimination against challengers as a class, a court 

should generally be hesitant to invalidate legislation 

which on its face imposes evenhanded restrictions.” 

Buckley, 424 U.S. at 31; see also Shrink Mo., 528 

U.S. at 395 (declining to second-guess validity of 

state interest where studies point in both directions). 

A cynic might ask, “if contribution limits benefit 

challengers to the detriment of incumbents, why 

would a sitting Member of Congress vote to enact a 

contribution limit?” Although amici reject the 

premise that Members of Congress do not put the 

greater good first, a simple answer is apparent. 

Major scandals and the ensuing public outcry have 

served as the true impetus behind reforms—that is, 

the American people have been the driving force 

behind the regulation of money in politics. In the 

instant case, Congress enacted the original aggregate 

limits in response to the scandal surrounding 

Watergate, which was financed with secret funds 

from a few, massive contributors. See 120 Cong. Rec. 

35,135-36 (1974) (statement of Rep. Frenzel) (“The 

$25,000 provision will be the death knell of the ‘fat 

cat.’ It will take not 1 year, but 160 years for the 

Stewart Motts and Clement Stones and other big 
18 

spenders to give $2 million to all Federal candidates, 

and 2,000 years to give $2 million to one candidate.”). 

That need for responsiveness continues today. 

Polling data illustrates that contribution limits 

reflect the demands of the American people for 

greater accountability from their elected officials, 

rather than a self-interested incumbent protection 

scheme. Support for contribution limits enjoys wide, 

bipartisan support among members of the public. A 

2012 poll found that 62% of Republicans, 66% of 

Democrats, and 65% of Independents favored 

“limiting the amount of money individuals can 

contribute to political campaigns” over “allowing 

individuals to contribute as much money to political 

campaigns as they’d like.” CBS News / New York 

Times Poll, Jan. 18, 2012, available at Polling the 

Nations, http://poll.orspub.com/document.php?id= 

quest12.out_11751&type=hitlist&num=0 (last visited 

July 22, 2013).6 

 

6 See also Democracy Corps Poll, Nov. 9, 2012, available at 

Polling the Nations, http://poll.orspub.com/document. 

php?id=quest12.out_1453&type=hitlist&num=0 (last visited 

July 22, 2013) (finding 67% of presidential election voters 

strongly agreed that “reasonable limits should be placed on 

campaign contributions and spending”); Associated Press Nat’l 

Constitution Poll, Sept. 17, 2012, available at Polling the 

Nations, http://poll.orspub.com/document.php?id=quest12. out_ 

1447&type=hitlist&num=0 (last visited July 22, 2013) (finding 

67% of respondents believed there should “be limits on the 

amount of money individuals can contribute to campaigns for 

President, Senate, and U.S. House”); Rasmussen Reports Poll, 

July 10, 2009, available at Polling the Nations,

http://poll.orspub.com/document.php?id=quest09.out_14739&ty

pe=hitlist&num=0 (last visited July 22, 2013) (finding 56% of 
19 

When a major scandal prompts Congress to enact 

reforms tying itself to the mast to respond to its 

constituents, the judiciary should respect its efforts, 

not remove its regulatory authority altogether. That 

is, “[t]o say that Congress is without power to pass 

appropriate legislation to safeguard . . . an election 

from the improper use of money to influence the 

result is to deny to the nation in a vital particular 

the power of self protection.” McConnell, 540 U.S. at 

223-24 (quoting Burroughs v United States, 290 U.S. 

534, 545 (1934) (quotation marks omitted)). 

Finally, given the difficulty of anticipating 

developments in campaign finance and 

circumvention techniques, this Court should be 

extremely reluctant to further constitutionalize 

campaign finance law, foreclosing regulation by the 

democratically elected branches. “In exercising its 

power to review the constitutionality of a legislative 

Act, a federal court should act cautiously. A ruling of 

unconstitutionality frustrates the intent of the 

elected representatives of the people.” Regan v. 

Time, Inc., 468 U.S. 641, 652 (1984). Deference, on 

the other hand, “provides Congress with sufficient 

room to anticipate and respond to concerns about 

circumvention of regulations designed to protect the 

integrity of the political process.” McConnell, 540 

U.S. at 137. 

Congress has regulated money in politics for over 

100 years, and the interplay between the legislature 

and the courts has yielded a delicate balance 

 

likely voters thought the government should “regulate how 

much money individuals can give to political campaigns”). 
20 

between competing concerns about government 

intrusion on speech and the corrupting effect of 

money on politics. See, e.g., id. at 115-22 

(summarizing the history of campaign finance 

legislation and judicial review). Despite this 

longstanding tradition, Appellants ask this Court to 

cast aside firmly established precedent and 

effectively declare campaign finance regulation 

outside the province of the democratically elected 

branches. This Court should instead continue to 

follow the course it charted in 1976, deferring to 

Congress vis-à-vis contribution limits generally, and 

aggregate limits specifically.

II. Contribution Limits in General, and Aggregate 

Contribution Limits in Particular, Remain 

Critical to Fighting the Actuality or Appearance 

of Corruption. 

In addition to affirming the level of scrutiny 

applicable to contribution limits, this Court has 

consistently declared that contribution limits serve 

the important governmental interest of reducing the 

actuality or appearance of corruption. Preventing 

corruption and its appearance is critical to 

maintaining voters’ faith in those who govern. Such 

“faith is bound to be shattered when high officials 

and their appointees engage in activities which 

arouse suspicions of malfeasance and corruption.” 

Shrink Mo., 528 U.S. at 390. 

Several of amici’s former colleagues have 

documented exactly the types of activities that 

arouse suspicions of malfeasance and corruption. As 

former Representative Chris Shays frankly admitted, 
21 

national parties raise soft-money by “promising 

donors access to elected officials.” McConnell D.D.C., 

251 F. Supp. 2d at 471. Likewise, former Senator 

Simpson stated that it was “not unusual for large 

contributors to seek legislative favors in exchange for 

their contributions.” Id. at 482. Former Senator 

Brock even remarked that “[large donors] for their 

part, feel they have a ‘call’ on these officials.” Id. at 

490; see also Br. of Solicitor General at 8-9 

(canvassing testimony by senators that large 

contributions purchased influence). These former 

elected officials have thus confirmed that the threat 

of corruption is quite real for elected officials, as 

amici themselves can attest. 

Aggregate contribution limits play a crucial role 

in preventing the actuality or appearance of 

corruption by ensuring individual contributors do 

not: (1) circumvent base contribution limits, or (2) 

contribute money with such breadth that it corrupts 

the institution as a whole. Yet despite these 

important interests, and Congress’ repeated 

inclusion of aggregate limits in a complex regulatory 

regime, Appellants ask this Court to strike down 

aggregate limits as unnecessary for fighting 

corruption. See McCutcheon Appellant Br. at 8 

(“McCutcheon App. Br.”) (“aggregate contribution 

limits are no longer needed”); RNC App. Br. at 19 

n.12 (“the ceiling no longer served any permissible 

purpose”). Because of the essential role these limits 

play in the campaign finance statutory scheme, this 

Court should reject Appellants’ invitation and uphold 

the aggregate contribution limits. 
22 

A. Contribution Limits are Justified by the 

Interest in Preventing Both the Actuality and 

the Appearance of Corruption. 

Since Buckley, this Court has upheld contribution 

limits as a closely drawn mechanism to “limit the 

actuality and appearance of corruption resulting 

from large individual financial contributions.” 424 

U.S. at 26; see also, e.g., McConnell, 540 U.S. at 143; 

Colorado II, 533 U.S. at 456; Shrink Mo., 538 U.S. at 

390-91; Colo. Republican Fed. Campaign Comm. v. 

FEC, 518 U.S. 604, 609 (1996) (“Colorado I”); Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 195 (1981). Absent 

contribution limits, this Court has recognized, “the 

integrity of our system of representative democracy 

is undermined.” Buckley, 424 U.S. at 26-27. “Of 

almost equal concern” is “the impact of the 

appearance of corruption stemming from public 

awareness of the opportunities for abuse” in a world 

of unconstrained political contributions. Id. at 27. 

“Leave the perception of impropriety unanswered, 

and the cynical assumption that large contributors 

call the tune could jeopardize the willingness of 

voters to take part in democratic governance. 

Democracy works only if the people have faith in 

those who govern.” Shrink Mo., 528 U.S. at 390 

(internal quotation marks omitted). 

The potential corruption recognized by this Court 

is not limited to bribery or cash-for-vote schemes, but 

“extend[s] to the broader threat from politicians too 

compliant with the wishes of large contributors.” 

McConnell, 540 U.S. at 143. While bribery and antiearmarking laws deal with the more “clumsy 

attempts to pass contributions through to 
23 

candidates,” Congress designed contribution limits to 

combat the subtle “undue influence” a single 

contributor could exert through excessive 

contributions. Colorado II, 533 U.S. at 441. 

Corruption has thus been “understood not only as 

quid pro quo agreements, but also undue influence 

on an officeholder’s judgment, and the appearance of 

such influence.” Id. at 440-41. 

Contrary to Appellants’ assertions, Citizens 

United did not limit the definition of corruption to 

quid pro quo arrangements. Citizens United 

addressed the distinct issue of independent 

expenditures, which, unlike contributions, “provide 

little assistance to the candidate’s campaign and 

indeed may prove counterproductive.” Buckley, 424 

U.S. at 47. The lack of “prearrangement and 

coordination of an expenditure . . . not only 

undermines the value of the expenditure to the 

candidate, but also alleviates the danger that 

expenditures will be given as a quid pro quo.” Id.; 

see also Colorado II, 533 U.S. at 440-41 (“limits on 

contributions are more clearly justified by a link to 

political corruption”); Colorado I, 518 U.S. at 615

(finding expenditure limits “less directly related to 

preventing corruption” than contribution limits). 

Citizens United itself recognized a broader 

definition of corruption for contribution limits that 

includes guarding against undue influence. As this 

Court observed in Citizens United, although a quid 

pro quo might not be directly proved, “[t]he Buckley 

Court, nevertheless, sustained limits on direct 

contributions in order to ensure against the reality or 

appearance of corruption.” 558 U.S. at 357. Citizens 
24 

United thus reaffirmed the continued vitality of the 

interest in preventing the appearance of corruption 

with respect to contribution limits, even though it 

refused to credit that interest in the context of 

independent expenditures. See id. (“[Buckley] did 

not extend this rationale [of protecting “against the 

reality or appearance of corruption”] to independent 

expenditures, and the Court does not do so here.”). 

This Court in Citizens United recognized that 

contribution limits serve a vital goal in limiting the 

well-founded fear of corruption and its appearance in 

the political process. 

Indeed, the threat of actual and apparent 

corruption remains real today, with contribution 

limits standing as the crucial bulwark. In the 

current political environment, a small number of 

elite contributors remain willing to spend millions of 

dollars on campaigns. See 2012 Top Overall 

Individual Contributors, OpenSecrets.org,

http://www.opensecrets.org/overview/topindivs_overa

ll.php (last visited July 22, 2013) (showing 11 

individuals giving over $5 million in the 2012 

elections, including six giving over $13 million and 

one giving over $90 million). In the absence of 

contribution limits, a candidate raising $1 billion for 

a modern presidential campaign could receive 

roughly 10% of his or her total funds from one 

contributor and potentially 20% from the top 20 

contributors. See The 2012 Money Race: Compare 

the Candidates, N.Y. Times, http://elections. 

nytimes.com/2012/campaign-finance (last visited 

July 22, 2013) (showing that 2012 presidential 

candidate campaigns raised around $1 billion). Such 
25 

influence would be even larger in Senate and House 

races, where a $10 million contribution would fund 

17% and 60% of the most expensive races, 

respectively. Spending in Key House and Senate 

Races, Wash. Post, Nov. 8, 2012, available at

http://www.washingtonpost.com/wp-srv/special/ 

politics/key-race-spending/. 

Even if one questions the actual influence exerted 

by such large contributors—a position that in amici’s 

view reveals a “myopia . . . [on] how the power of 

money actually works in the political structure,” 

Colorado II, 533 U.S. at 450—the appearance of 

corruption caused by such large contributions is 

undeniable. Empirical polling data demonstrates 

that the American people undeniably view large 

contributions as engendering corruption. See, e.g., 

Democracy Corps Poll, Nov. 9, 2012, available at

Polling the Nations, http://poll.orspub.com/document. 

php?id=quest12.out_1455&type=hitlist&num=6 (last 

visited July 22, 2013) (finding 64% of presidential 

election voters agreed with the statement that “big 

donors and secret money . . . control which 

candidates we hear about” and “undermine[ ] our 

democracy”).7

 Thus, at the very least, the 

 

7 See also Rasmussen Reports Poll, July 10, 2009, available at

Polling the Nations, http://poll.orspub.com/document.php? 

id=quest09.out_14740&type=hitlist&num=1 (last visited July 

22, 2013) (finding 88% of likely voters believed it likely that 

even “[i]f the government places limits on how much individuals 

can give to campaigns . . . special interest groups will still find 

ways to get money to politicians and influence their votes”); 

Zogby Int’l Poll, Apr. 12, 2001, available at Polling the Nations,

http://poll.orspub.com/document.php?id=quest01.out_2937&typ

e=hitlist&num=2 (last visited July 22, 2013) (finding 69% of 
26 

elimination of contribution limits would erode public 

trust to a “disastrous extent.” Buckley, 424 U.S. at 

27. 

B. Aggregate Contribution Limits are a 

Necessary Part of the Closely Drawn System 

for Avoiding Corruption. 

Aggregate limits play a critical role in fighting 

the actuality and appearance of corruption in the 

political process. In politics, “[m]oney, like water, 

will always find an outlet.” McConnell, 540 U.S. at 

224. This Court has long observed that contribution 

limits would be of little use fighting corruption 

without additional measures, such as aggregate 

limits, to ensure that base limits are not 

circumvented. 

The Court upheld the $25,000 aggregate limit in 

Buckley not only because it was a “quite modest 

restraint upon protected political activity,” but also 

because it “serve[d] to prevent evasion . . . by a 

person who might otherwise contribute massive 

amounts of money to a particular candidate.” 424 

U.S. at 38. With aggregate limits, Congress sought 

to solve the problem of an individual contributor 

using political parties and PACs as a mere transfer 

point for money going directly to a candidate. 

“[D]espite years of enforcement of the challenged 

limits, substantial evidence demonstrates how 

candidates, donors, and parties test the limits of the 

current law.” Colorado II, 533 U.S. at 457. Indeed, 

 

likely voters agreed with the position of Senator John McCain 

that “unlimited contributions . . . have a corrupting influence on 

our political system and should be banned”). 
27 

“whether [parties] like it or not, they act as agents 

for spending on behalf of those who seek to produce 

obligated officeholders.” Id. at 452. 

As this Court has cautioned, failure to recognize 

the possibility of circumvention reflects “a refusal to 

see how the power of money actually works in the 

political structure.” Id. at 450. Nevertheless, 

Appellants and their amici contest the effectiveness 

of aggregate contribution limits in curbing such 

circumvention and preventing corruption. 

First, they argue that laws permitting the 

transfer of money show Congress’ lack of concern 

about the evasion of contribution limits. See RNC 

App. Br. at 20. Although political parties, PACs, and 

candidates can transfer money, 2 U.S.C. § 441a(a)(4-

5), this does not indicate that Congress saw the 

transfer of an unlimited amount of money as 

unproblematic. Instead, the transfer and aggregate 

limit provisions work in tandem. Congress 

established an equilibrium between two competing 

concerns: giving political parties the flexibility to 

support the candidates of their choice, cf. Eu v. San 

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

214, 224 (1989) (noting that political parties have an 

interest in identifying and supporting candidates), 

while at the same time ensuring that transfers did 

not become a backdoor for excessive giving beyond 

the base limits. Aggregate limits in combination 

with unrestricted transfers provide the middle 

ground by preserving political parties’ ability to 

support candidates while simultaneously protecting 

against abuses of contribution limits. 
28 

Second, Appellants argue that anti-earmarking 

provisions prevent concerns of undue influence, as 

candidates will not know the individual source of 

their contributions. Actual experience, however, 

recognized as part of the record in McConnell, shows 

that this formalism has not prevented 

circumvention. Testimony from contributors and 

elected officials revealed that incumbent senators 

“were very concerned about whether or not donors’ 

checks were tallied to them.” McConnell D.D.C., 251 

F. Supp. 2d at 477. Committees receiving donations 

“underst[ood] that [the money] ha[d] been raised by 

or for a particular federal candidate, and this 

affect[ed] how much the committee spen[t] on behalf 

of that candidate.” Id. 

In assessing the ineffectiveness of antiearmarking provisions standing alone, consider, for 

example, the 2012 Senate elections. The NRSC 

donated to 18 candidates and the DSCC donated to 

15 candidates. See Democratic Senatorial Campaign 

Cmte: Contributions to Candidates, Open 

Secrets.org, http://www.opensecrets.org/parties/ 

recipients.php?cycle=2012&cmte=DSCC (last visited 

July 22, 2013); National Republican Senatorial 

Cmte: Contributions to Candidates, Open 

Secrets.org, http://www.opensecrets.org/parties/ 

recipients.php?cmte=NRSC&cycle=2012 (last visited 

July 22, 2013). Given the narrow universe of 

competitive races, a Senate candidate would 

certainly know who contributed money and for what 

purpose, regardless of whether the money was given 

to the candidate directly, a PAC, or a political party. 

Especially if contributors can give millions of dollars, 
29 

candidates will not be shocked that money from 

ostensibly disparate places actually has a single 

source. 

Joint fundraising committees, which fall outside 

the earmarking ban, make this process even easier 

for large contributors. With joint fundraising 

committees, a contributor can walk into an event he 

or she knows is for a single candidate and write one 

check. See 11 C.F.R. § 102.17. Only afterwards do 

the political parties, PACs, and candidate divvy up 

the money. The post-hoc division of money neither 

makes the contributor think that he or she gave to 

separate organizations nor confuses the candidate as 

to which contributor gave the most collectively to his 

or her campaign or party. As this Court has 

recognized, “[t]o treat the earmarking provision as 

the outer limit of acceptable tailoring would disarm 

any serious efforts to limit the corrosive effects of . . . 

[the] understandings regarding what donors give 

what amounts to the party, which candidates are to 

receive what funds from the party, and what 

interests particular donors are seeking to promote.” 

Colorado II, 533 U.S. at 462. 

Finally, Appellants contend that aggregate limits 

are unnecessary because if the unrestrained 

contribution of money did take place, it would not be 

the massive influx feared. RNC App. Br. at 34; 

McCutcheon App. Br. at 41. They argue that the 

base contribution limits—$5,000 to a candidate’s 

campaign committee, $32,400 per year to a national 

party, $10,000 a year to a state party, and $5,000 a 

year to an unlimited number of PACs—provide 

enough protection against corruption. RNC App. Br. 
30 

at 19; McCutcheon App. Br. at 8. The math tells a 

different story. As the lower court calculated, a 

single individual could contribute $3.5 million in one 

election cycle if only the base limits remained. 

McCutcheon v. FEC, 893 F. Supp. 2d 133, 135 

(D.D.C. 2012), probable jurisdiction noted, 133 S. Ct. 

1241 (2013). This does not include additional giving 

to an unlimited number of PACs. Id. at 135 n.1. 

Amici for Appellants also suggest that since $7 

billion was raised in the 2012 election cycle, the 

potential millions contributed by a single individual 

would be an unnoticeable drop in the bucket. See Br. 

for Nat’l Republican Sen. Comm. & Nat’l Republican 

Cong. Comm. as Amici Curiae Supporting Appellants 

at 22 (noting how the NRSC’s ability to transfer 

money is limited to approximately $1.5 million—only 

0.02% of $7 billion). This contention by Appellants’ 

amici defies common sense. According to this view, 

$100 million in contributions would not be a concern 

for corruption because it only amounts to 1.4% of the 

$7 billion total raised, much less $3.5 million at 

0.05%. Millions of dollars funneled to a few 

candidates from a single contributor can and will 

have an undue influence amounting to corruption or 

the appearance of corruption. 

Despite the claims of Appellants and their amici, 

aggregate limits play an integral role in the 

statutory scheme regulating campaign finance, 

providing a crucial backstop to the base contribution 

limits. A decision invalidating such limits would 

thus have substantial consequences, potentially 

undermining the efficacy of the entire regulatory 

regime governing money in politics. 
31 

C. Aggregate Limits Also Prevent Institutional 

Corruption. 

Corruption is not limited to individual elected 

officeholders. In designing the 1974 aggregate limit, 

Congress also sought to protect against the danger of 

institutional corruption, where an individual 

contributor donates widely across candidates and 

parties. See 120 Cong. Rec. 35,135-36 (statement of 

Rep. Frenzel) (emphasizing that the aggregate limit 

prevented big contributors from donating significant 

amounts to all federal candidates). The risk is that 

the breadth of donations and subsequent influence 

across one or both political parties cross the line from 

access to creating the actuality or appearance of 

corruption. 

Even assuming money is not transferred—and 

the anti-circumvention rationale does not apply—

base limits standing alone would still allow one 

contributor to give large amounts to all facets of the 

campaign infrastructure, including candidate 

committees, national parties, state parties, and 

PACs. Scholar Lawrence Lessig warns that this 

circumstance can lead to “dependence corruption” in 

which Congress as an institution becomes 

increasingly obligated to the few contributors who 

give heavily to a wide swath of candidates rather 

than to the people themselves. Lawrence Lessig, 

What an ‘Originalist’ Would Understand ‘Corruption’ 

to Mean, Cal. L. Rev. (forthcoming 2013), available 

at http://ssrn.com/abstract=2257948 at 6, 27-28. 

Avoiding dependence corruption meets the 
32 

compelling interest of “protect[ing] the legitimate 

processes of the government.” Id. at 17.8

As a concrete example, a contributor could give 

the maximum amount to one party’s candidate in 

every competitive House and Senate race—around 

81 in the House and 18 in the Senate in 2012—as 

well as the three national party organizations. See 

House Race Ratings, N.Y. Times, http://elections. 

nytimes.com/2012/ratings/house (last visited July 22, 

2013) and Senate Race Ratings, N.Y. Times,

http://elections.nytimes.com/2012/ratings/senate (last 

visited July 22, 2013). The total amount given would 

be $592,200, including $495,000 to the candidates 

and another $97,200 for the party organizations. A 

sophisticated contributor might also give to both 

political parties and to less competitive races where 

the incumbent sits on a committee regulating the 

contributor’s interests. See McConnell, 540 U.S. at 

148 (noting that more than half of the top 50 softmoney contributors gave to both parties). With this 

level of giving, a conservative estimate would be that 

the contributor has provided the maximum amount 

of money to around 100 Members of Congress.9 

 

8 Lessig also argues that the Founders viewed corruption as 

dependence corruption. Id. at 6-14. 

9

 The 100 member estimate is based on two conservative 

assumptions: (i) 50% of the candidates the contributor backed 

in the 99 competitive elections win, equaling 50 current 

members; and (ii) the contributor will have given the maximum 

contribution to 50 other members of Congress, either because 

the contributor gave in past elections or because the members 

sit on committees with oversight over the contributor. The 
33 

The breadth of these contributions matters. The 

threat of corruption would not be ameliorated simply 

because the money was not funneled to one 

candidate. The party, its leaders, and a wide crosssection of Congress will all be indebted to a single 

contributor. See McConnell D.D.C., 251 F. Supp. 2d 

at 489 (quoting a longtime lobbyist for the 

proposition that sophisticated political contributors 

are “not in the business of dispensing their money on 

purely ideological or charitable grounds”). Moreover, 

when 100 Members of Congress as well as national 

political organizations all receive the maximum 

donation from one contributor, the public will be—

and should be—suspicious of corruption. As the 

public comes to see corruption penetrating the entire 

institution, the very “integrity of our system of 

representative democracy” will be at risk. Buckley, 

424 U.S. at 26-27. Amici respectfully urge this Court 

to keep the integrity of the system intact. 

 

estimate is conservative because it does not include 

contributors who give to both parties. 
34 

CONCLUSION 

For the foregoing reasons, the decision of the 

District Court should be affirmed. 

 July 25, 2013 Respectfully submitted, 

PAUL M. SMITH

 Counsel of Record 

JESSICA RING AMUNSON

NEAL R. UBRIANI* 

JENNER & BLOCK LLP

1099 New York Ave., N.W. 

Washington, DC 20001 

(202) 639-6000 

psmith@jenner.com 

*Admitted only in New 

York; supervised by 

principals of the Firm
 

APPENDIX
1a

LIST OF PARTICIPATING AMICI 

 

The Members of the United States House of 

Representatives participating as amici are: 

Karen Bass (CA-37) 

Xavier Becerra (CA-34) 

Earl Blumenauer (OR-3) 

Robert A. Brady (PA-1) 

Bruce Braley (IA-1) 

Julia Brownley (CA-26) 

Cheri Bustos (IL-17) 

Lois Capps (CA-24) 

Mike Capuano (MA-7) 

Matt Cartwright (PA-17) 

Judy Chu (CA-27) 

David Cicilline (RI-1) 

Steve Cohen (TN-9) 

Gerald Connolly (VA-11) 

John Conyers, Jr. (MI-13) 

Joseph Crowley (NY-14) 

Elijah Cummings (MD-7) 

Susan Davis (CA-53) 

Peter DeFazio (OR-4) 

Rosa L. DeLauro (CT-3) 

Ted Deutch (FL-21) 

John Dingell (MI-12) 

Lloyd Doggett (TX-35) 

Donna Edwards (MD-4) 

Keith Ellison (MN-5) 

William Enyart (IL-12) 

Anna Eshoo (CA-18) 
2a 

Elizabeth Esty (CT-5) 

Sam Farr (CA-20) 

Alan Grayson (FL-9) 

Raul Grijalva (AZ-3) 

Alcee L. Hastings (FL-20) 

Rush Holt (NJ-12) 

Mike Honda (CA-17) 

Jared Huffman (CA-2) 

Sheila Jackson Lee (TX-18) 

Hakeem Jeffries (NY-8) 

Hank Johnson (GA-4) 

Marcy Kaptur (OH-9) 

William Keating (MA-9) 

Daniel Kildee (MI-5) 

Derek Kilmer (WA-6) 

Ron Kind (WI-3) 

Ann McLane Kuster (NH-2) 

James Langevin (RI-2) 

John Larson (CT-1) 

Barbara Lee (CA-13) 

John Lewis (GA-5) 

David Loebsack (IA-2) 

Zoe Lofgren (CA-19) 

Alan Lowenthal (CA-47) 

Michelle Lujan Grisham (NM-1) 

Jim McDermott (WA-7) 

Jim McGovern (MA-2) 

George Miller (CA-11) 

Gwen Moore (WI-4) 

Jim Moran (VA-8) 

Patrick Murphy (FL-18) 

Eleanor Holmes Norton (DC) 

Beto O’Rourke (TX-16) 
3a 

Bill Pascrell (NJ-9) 

Donald Payne Jr. (NJ-10) 

Gary Peters (MI-14) 

Chellie Pingree (ME-1) 

Mark Pocan (WI-2) 

Charles B. Rangel (NY-13) 

C.A. Dutch Ruppersberger (MD-2) 

Bobby Rush (IL-1) 

Tim Ryan (OH-13) 

Loretta Sanchez (CA-46) 

John Sarbanes (MD-3) 

Jan Schakowsky (IL-9) 

Kurt Schrader (OR-15) 

Bobby Scott (VA-3) 

Jose Serrano (NY-15) 

Brad Sherman (CA-30) 

Louise Slaughter (NY-25) 

Eric Swalwell (CA-15) 

Mark Takano (CA-41) 

Mike Thompson (CA-5) 

Dina Titus (NV-1) 

Paul Tonko (NY-20) 

Niki Tsongas (MA-3) 

Frederica Wilson (FL-24) 

John Yarmuth (KY-3)