No.______________ 

In The 

Supreme Court of the United States 

VIRGINIA JAMES, 

 

 Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

 

 Appellee. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 JURISDICTIONAL STATEMENT 

 ALLEN DICKERSON

 Counsel of Record 

 TYLER MARTINEZ

 ZAC MORGAN

 ANNE MARIE MACKIN

 CENTER FOR COMPETITIVE

 POLITICS

 124 S. West Street, # 201 

 Alexandria, Virginia 22314 

 (703) 894-6800 

 adickerson@campaignfreedom.org 

November 30, 2012 Counsel for Appellant 
i 

QUESTION PRESENTED 

 

 Section 307 of the Bipartisan Campaign 

Reform Act, Pub. L. 107-155, 116 Stat. 93 (2002) 

(“BCRA”), codified at 2 U.S.C. § 441a(a) (2012), 

imposes a limit of $2,500 per election on all 

individual contributions to candidates. It also 

provides that no individual may contribute, in the 

aggregate, more than $117,000 in each biennial 

period, subdivided as follows: $46,200 to candidate 

committees and $70,800 to all other committees, of 

which $24,600 must be contributed to national party 

committees. 

 Appellant wishes to make contributions to 

individual candidate committees, but not political 

committees (“PACs”) or party committees. She does 

not wish to contribute more than $2,500 in any 

election to any single candidate committee. Nor does 

she wish to contribute more than $117,000 to all 

committees, in the aggregate, in any biennium. 

Rather, she wishes to take funds which may legally 

be contributed to PACs and party committees, and 

instead contribute those same funds directly to 

additional candidate committees. 

 Appellant presents one question: 

1. Whether the three-judge district court erred 

in dismissing Appellant’s facial and as-applied 

challenge to Section 307(b) of the Bipartisan 

Campaign Reform Act, Pub. L. 107-155, 116 

Stat. 93 (2002) (“BCRA”) codified at 2 U.S.C. § 

441a(a)(3)(A). 
ii 

PARTIES TO THE PROCEEDING 

 

Appellant is an individual United States 

citizen who wishes to contribute to the campaigns of 

candidates for federal office. She wishes to 

contribute more than the $46,200 presently 

permitted by 2 U.S.C. § 441a(a)(3)(A) but less than 

the $117,000 presently permitted as contributions to 

candidate committees, political committees, and 

party committees taken together (2 U.S.C. § 

441a(a)(3) (2012) (indexed for inflation 11 C.F.R. § 

110.5(b)(3)-(4) per 76 Fed. Reg. 8368 (Feb. 14, 

2011))). 

 Appellee is the Federal Election Commission 

(“FEC”), the named defendant in the district court. 

 
iii 

TABLE OF CONTENTS 

 

Question Presented ...................................................... i 

Parties to the Proceeding ............................................ ii 

Table of Authorities ................................................... vii 

Opinion Below .............................................................. 1 

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

Constitutional and Statutory Provisions .................... 1 

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

Procedural History ....................................................... 3 

The Question Presented is Substantial ....................... 4 

I. BCRA’s statutory scheme must survive 

“exacting scrutiny.” ...................................... 7 

II. The only state interest justifying 

aggregate contribution limits is 

preventing circumvention of limitations 

on contributions to individual candidates. .. 9 

III. BCRA and the FEC’s implementing 

regulations unambiguously create an 

overall aggregate cap on contributions. .... 13 

A. BCRA’s legislative history convincingly 

demonstrates that Congress intended to 
iv 

establish an updated overall aggregate 

limit, subdivided to advantage party 

and political committees at the expense 

of candidate committees. ...................... 14 

IV. BCRA’s statutory scheme increases, rather 

than decreases, the risk that large 

contributions to PACs and parties will be 

used to circumvent the limits on 

contributions to candidates. ...................... 17 

A. In order to contribute the overall 

amount found to be noncorrupting, 

BCRA requires an individual to 

contribute to parties. ............................ 18 

B. Contributions to national party 

committees, pose a far greater risk of 

circumvention than do contributions to 

candidate committees. .......................... 19 

C. The district court, for the first time, 

held that contributions to candidate 

committees pose the same risk of 

circumvention as do contributions to 

PACs and Parties. ................................. 24

Conclusion ................................................................... 26 

 
v 

APPENDIX TABLE OF CONTENTS 

 

Appendix A 

Order of the United States District 

Court for the District of Columbia, No. 

12-1451 

(October 31, 2012) ........................................ App-1 

Appendix B 

Memorandum Opinion of the United 

States District Court for the District of 

Columbia, No. 12-1451 

(October 31, 2012) ........................................ App-3 

Appendix C 

Notice of Appeal to the Supreme Court 

of the United States From a Judgment 

of a District Court, No. 12-1451 

(November 1, 2012) .................................... App-13 

Appendix D 

Memorandum Opinion and Order of the 

United States District Court for the 

District of Columbia, No. 12-1034 

(September 28, 2012) ................................. App-16 

Appendix E 

Relevant Provisions of the Constitution, 

Statutes and Rules .................................... App-36 

Appendix F 

Verified Complaint for Declaratory 

Relief 

(August 31, 2012) ....................................... App-39 
vi 

Appendix G 

Motion for Preliminary Injunction and 

Memorandum of Law in Support 

(September 5, 2012) ................................... App-51 

Appendix H 

Plaintiff’s Response to Order to Show 

Cause 

(October 9, 2012) ........................................ App-81 

Appendix I 

Defendant’s Opposition to Plaintiff’s 

Response to Order to Show Cause 

(October 22, 2012) ...................................... App-93 

 
vii 

TABLE OF AUTHORITIES 

 

Cases 

Ariz. Free Enter. Club's Freedom Club PAC v. 

Bennett, 

131 S. Ct. 2806 (2011) ........................................ 8 

Buckley v. Valeo, 

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

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

533 U.S. 431 (2001) .......................................... 24 

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

470 U.S. 480 (1985) ............................................ 9 

McConnell v. FEC, 

540 U.S. 93 (2003) .................................... passim 

NAACP v. Ala. ex rel Patterson, 

357 U.S. 449 (1958) ............................................ 8 

Nixon v. Shrink Mo. Gov't PAC, 

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

 

Constitutions, Statutes, Regulations, and Rules 

 

Bipartisan Campaign Reform Act (“BCRA”), 

 Pub. L. No. 107-155, 116 Stat. 81 (2002) passim 

11 C.F.R. § 110.1 ...................................................... 21 

11 C.F.R. § 110.5 .............................................. passim 
viii 

11 C.F.R. § 110.17 .................................................... 18 

76 Fed. Reg. 8368 (Feb. 14, 2011) .................. 5, 18, 22 

76 Fed. Reg. 8369 (Feb. 14, 2011) ............................ 22 

76 Fed. Reg. 8370 (Feb. 14, 2011) ...................... 18, 19 

U.S. CONST. amend. I ....................................... passim 

2 U.S.C. § 431(4) ....................................................... 21

2 U.S.C. § 431(16) ..................................................... 21

2 U.S.C. § 441a(a)(1) ........................................ passim 

2 U.S.C. § 441a(a)(2) ............................................ 5, 21

2 U.S.C. § 441a(a)(3) ........................................ passim 

2 U.S.C. § 441a(a)(4) ................................................ 21 

2 U.S.C. § 441a(d)(3)(A) ........................................... 22 

2 U.S.C. § 441a(h) .................................................... 22 

28 U.S.C. § 1331 ......................................................... 3 

 

Other Authorities 

147 Cong. Rec. S. 2958 ............................................. 15 

148 Cong. Rec. S. 2154 ............................................. 15 
ix 

148 Cong. Rec. S. 2155 ............................................. 15 

Federal Election Campaign Act of 1971 (“FECA”),

2 U.S.C. 432 et seq ................................... passim 

Federal Election Commission, Contribution Limits 

2011-12, http://www.fec.gov/ pages/ 

brochures/contriblimits.shtml ..................... 2, 18 

Federal Election Commission, 2012 Coordinated 

Party Expenditure Limits, http://www.fec.gov/ 

info/charts_441ad_2012.shtml. ........................ 23 

Joseph E. Cantor and L. Paige Whitaker, Cong. 

Research Serv., RL31402, CRS Report for 

Congress: Bipartisan Campaign Reform Act of 

2002: Summary and Comparison with Previous 

Law CRS-2 (2004) ............................................ 16 
1 

OPINION BELOW 

 

 The opinion of the district court, James v. 

FEC, No. 12-1451 (D.D.C. Oct. 31, 2012) is reprinted 

in the appendix (“App.”) to this jurisdictional 

statement. App. 3-12. 

 

 

JURISDICTION 

 

 The three-judge district court entered a 

memorandum opinion and order on October 31, 

2012. James v. FEC, Order at App. 1-2, Mem. Op. at 

App. 3-12. That order dismissed the case and 

entered judgment for Appellee FEC. James, Order at 

App. 1. Appellant filed a notice of appeal on 

November 1, 2012. Notice of Appeal, App. 13. 

This Court has jurisdiction under Section 

403(a)(3) of the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 113-114, 

codified at 2 U.S.C. § 437h note 5 (2012); and 28 

U.S.C. § 1253 (2012). 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS 

 

 Pertinent constitutional and statutory 

provisions are reproduced at App. 36-38 of the 

appendix to this jurisdictional statement. 
2 

STATEMENT OF THE CASE 

 

 Appellant Virginia James wishes to contribute 

to federal candidates and their committees. She does 

not intend to exceed the $2,500 limit on 

contributions to particular candidates. But she does 

prefer to make contributions, in the aggregate, 

exceeding the $46,200 ceiling the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”) and 

subsequent FEC regulations impose. 

 BCRA provides two separate “aggregate” 

contribution limits: $46,200 to all candidates, and 

$70,800 to all political committees (“PACs”) and 

party committees. These together comprise what 

Appellee FEC itself calls the “$117,000 overall 

biennial limit” Federal Election Commission, 

Contribution Limits 2011-12, http://www.fec.gov/ 

pages/brochures/contriblimits.shtml (last visited 

Nov. 29, 2012). These also constitute what the FEC’s 

own regulations, which have the force of law, clearly 

define as an aggregate cap on contributions. 11 

C.F.R. § 110.5(b)(1). 

Appellant wishes to take some portion of the 

$70,800 she may already contribute to PACs and 

parties, and instead give it directly to candidates. 

 Doing so would not increase the total amount 

Ms. James would contribute, directly and indirectly, 

to federal candidates – she could still give no more 

than $117,000 in the aggregate. Nor would it pose 

any greater risk of circumventing the $2,500 per 
3 

candidate limit than does the present statutory 

scheme. Instead, on every metric, Ms. James’s 

contributions would pose a lower risk of corruption 

and a lower risk of circumvention than do 

contributions under the present regime. 

Consequently, BCRA’s provisions requiring her to 

contribute to political committees and national party 

committees, rather than directly to candidates, 

cannot survive constitutional scrutiny. 

PROCEDURAL HISTORY 

 

 This action was filed on August 31, 2012. The 

district court had jurisdiction under 28 U.S.C. § 1331 

(2012). Five days later, Appellant moved for a 

preliminary injunction, noting that the 2012 election 

was approaching, and asking the Court to 

expeditiously ensure that she could exercise her 

First Amendment rights in advance of that date. 

 In June 2012, McCutcheon v. FEC, No. 12-

1034, was filed and assigned to a three-judge panel 

of the district court. Over Appellant’s objection, the 

same panel was assigned this case. On September 

19, the district court stayed its consideration of this 

matter pending the outcome of McCutcheon. One 

week later, noting the approaching election, 

Appellant asked the court to lift its stay. 

 On September 28, the district court issued its 

decision in McCutcheon. Three days later, the court 

ordered Appellant to show cause, within eight days, 

why her case should not be dismissed under 
4 

McCutcheon’s reasoning. Upon receiving Appellant’s 

response, the FEC was invited to submit a reply to 

that document within eleven days. 

 On October 31, the district court granted 

Appellant’s motion to lift its stay, and dismissed 

Appellant’s case sua sponte. In doing so, the court 

relied on McCutcheon and the FEC’s response to the 

court’s Order to Show Cause. Appellant was given no 

opportunity to reply to the FEC’s arguments. No 

dispositive motion was ever filed, and the district 

court heard no argument. 

 Believing the district court’s ruling to be in 

error, Appellant filed her Notice of Appeal on 

November 1, 2012. 

 

THE QUESTION PRESENTED IS 

SUBSTANTIAL 

 

 Appellant’s argument is straightforward. 

Laws regulating contribution limits are subject to 

“the exacting scrutiny required by the First 

Amendment.” Buckley v. Valeo, 424 U.S. 1, 16 

(1976). While Congress has substantial discretion to 

set aggregate contribution limits, it must do so in a 

way that is “closely drawn” to match a “sufficiently 

important governmental interest.” Nixon v. Shrink 

Mo. Gov't PAC, 528 U.S. 377, 387-388 (2000) 

(“Shrink”). Only one such interest has been 

identified: the risk that large contributions, in the 

aggregate, may be funneled through committees so 
5 

as to evade the limitations on contributions to 

individual candidates. 

 BCRA establishes a biennial aggregate 

contribution limit: $117,000. It then subdivides this 

limit: only $46,200 may be contributed directly to 

candidates. 2 U.S.C. § 441a(a)(3)(A) (indexed for 

inflation per 11 C.F.R. § 110.5(b)(3)-(4) at 76 Fed. 

Reg. 8368 (Feb. 14, 2011)). The remaining $70,800 

must be contributed to PACs or parties. Of this 

$70,800, no more than $46,200 may be given to “to 

political committees which are not political parties of 

national political parties.” To truly “max out,” then, 

$24,600 must be contributed to national party 

committees. In short, while Congress has stated that 

individuals may contribute $117,000 toward federal 

elections, the law requires that 60% of that amount 

be given to political intermediaries, and that 21% be 

given only to party committees. 

 The risk of circumvention of the $2,500 

individual candidate limit is patently greater when 

large sums are given to party committees rather 

than divided among a number of candidates. 

Nonetheless, once an individual has contributed 

$46,200 to various federal candidates, that 

individual may not contribute a cent more, but may 

contribute an additional $70,800 to committees that 

may, in turn, contribute to candidates – including 

the candidates to whom our hypothetical individual 

had originally contributed. 2 U.S.C. § 441a(a)(2)(A). 
6 

 Appellant does not wish to associate with 

political committees or party committees. She wishes 

to associate directly with candidates for federal 

office. Engaging in such association would lessen, 

rather than raise, the possibility of circumvention. 

Yet BCRA’s statutory scheme prohibits Appellant 

from associating as she wishes within the bounds of 

an overall aggregate contribution cap, and therefore 

unconstitutionally limits her associational rights 

under the First Amendment. 

 In dismissing this argument, the district court 

made two significant legal errors. 

First, it ruled that there is no $117,000 

aggregate limit in BCRA, only aggregate limits on 

particular types of contributions. This holding is 

contrary to the plain language of BCRA, the FEC’s 

regulations implementing that Act, and the legislative 

history of BCRA itself. See 11 C.F.R. § 110.5. It also 

ignores a central premise of Appellant’s complaint: that 

she acknowledges Congress’s ability to impose the 

$117,000 aggregate limit, and would abide by that cap. 

 Second, the district court held, for the first time 

and without referencing any authority, that 

contributions directly to candidate committees pose the 

same risk of circumvention as do much larger 

contributions to PACs and, especially, party committees. 

 Both errors are substantial. Not only do they 

prevent Appellant from associating directly with 

candidates—a right protected by the First 
7 

Amendment—they also uphold a statute that 

manifestly increases the possibility that the limits 

on contributions to candidates will be circumvented. 

Consequently, the district court is mistaken, and the 

sub-aggregate limit of 2 U.S.C. § 441a(a)(3)(A) 

cannot survive exacting scrutiny. 

 These errors are compounded by the Court’s 

failure to allow Appellant to respond to the 

Appellee’s theory of this case. Consequently, this 

Court should exercise its jurisdiction to provide de 

novo review of the district court's dismissal, sua 

sponte and without argument, of Appellant’s case. 

I. BCRA’s statutory scheme must survive 

“exacting scrutiny.”

Contribution limits implicate fundamental 

First Amendment interests. Buckley, 424 U.S. at 24-

25 (1976). As is often the case with challenges to 

federal campaign finance laws, Buckley v. Valeo

provides the touchstone for constitutional analysis 

here. Buckley examined the Federal Election 

Campaign Act (“FECA”), BCRA’s predecessor.1 Id. at 

6; McConnell v. FEC, 540 U.S. 93, 118-119 (2003). 

In Buckley, this Court identified campaign 

contributions as a component of the “right to 

associate” and therefore determined that limits on 

contributions must be subject “to the closest 

 

1

 Indeed, the McConnell opinion occasionally refers to BCRA as 

“New FECA.” See, e.g., 540 U.S. at 133. 
8 

scrutiny.” Buckley, 424 U.S. at 25 (citing NAACP v. 

Ala. ex rel Patterson, 357 U.S. 449, 460-61 (1958)). 

While the right to associate and participate in 

politics “is not absolute,” the government must 

“demonstrate[] a sufficiently important interest and 

employ[] means closely drawn to avoid unnecessary 

abridgement of associational freedoms.” Id. (internal 

quotations and citations omitted); see Shrink, 528 

U.S. at 387-388 (contribution limits were 

constitutionally sound when “closely drawn” to 

match a “sufficiently important interest”). 

In McConnell v. FEC, this Court specifically 

examined BCRA’s provisions, including its 

contribution limits. 540 U.S. at 141. McConnell

reiterated Shrink’s formulation of “exacting 

scrutiny,” and further noted that “contribution limits 

may bear more heavily on the associational right 

than on freedom to speak.” Id. at 134-135 (citing, 

inter alia, Shrink, 528 U.S. at 388). While McConnell

emphasized that campaign expenditure limitations 

are subject to a higher level of scrutiny than 

campaign contribution limitations, this Court still 

applied the “closely drawn” standard in rejecting a 

facial challenge to BCRA. McConnell, 540 U.S. at 

134, 136. This analysis was repeated as recently as 

last year. Ariz. Free Enter. Club's Freedom Club 

PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) 

(examining the level of scrutiny applicable to 

contribution limits).

The district court itself correctly recognized 

that exacting scrutiny is the proper standard of 
9 

review in this case. James v. FEC, No. 12-01451, 

App. 7-8 (D.D.C. Oct. 31, 2012). Indeed, the same 

three-judge panel explicitly applied exacting scrutiny 

in McCutcheon as well. McCutcheon v. FEC, --- F. 

Supp. 2d ---, No. 12-1034, App. 22 (D.D.C. Sept. 28, 

2012). 

Therefore, any provision of BCRA governing 

contribution limits may only survive constitutional 

scrutiny if it is “closely drawn to match a sufficiently 

important governmental interest.” 

II. The only state interest justifying 

aggregate contribution limits is 

preventing circumvention of limitations 

on contributions to individual 

candidates.

This Court has previously upheld aggregate 

contribution limits, with the caveat that “preventing 

corruption or the appearance of corruption are the 

only legitimate and compelling government interests 

thus far identified for restricting campaign 

finances.” Shrink, 528 U.S. at 428 (citing FEC v. 

Nat'l Conservative Political Action Comm., 470 U.S. 

480, 496-97 (1985)). 

In Buckley v. Valeo, the Court considered 

FECA’s overall limit on total contributions by 

individuals to candidates, political committees, and 

parties. Specifically, FECA imposed a $1,000 limit 

on individual contributions to candidates, and a 
10 

$25,000 limit on all contributions to federal 

committees. Buckley, 424 U.S. at 7. FECA did not 

subdivide this $25,000 aggregate limit; rather, it 

applied to all contributions to all federal entities, 

including candidate committees, political 

committees, and parties. Id. at 13. 

 The Buckley Court held that contribution 

limits are constitutional when they serve to prevent 

“corruption and the appearance of corruption 

spawned by the real or imagined coercive influence 

of large financial contributions on candidates’ 

positions and on their actions if elected to office.” Id. 

at 25. It went on to note that preventing the “evasion 

of the...[individual] contribution limitation by a 

person who might otherwise contribute massive 

amounts of money to a particular candidate through” 

pass-through vehicles such as PACs and parties 

necessitated an overall aggregate limit as “a 

corollary of the basic individual contribution 

limitation.” Id. at 38. 

 Thus, while the Court acknowledged that an 

aggregate limit “does impose an ultimate restriction 

upon the number of candidates and committees with 

which an individual may associate himself,” the 

overall, undivided aggregate limit was upheld. Id. 

But the Court’s concern in doing so was specific: “a 

person [might] contribute massive amounts of money 

to a particular candidate through the use of 

unearmarked contributions to political committees 
11 

likely to contribute to that candidate, or huge 

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

2

 

Buckley’s analysis, then, rested on three 

points. First, the only justification for aggregate 

limits is the need to prevent circumvention of the 

limits on contributions to individual candidates. 

Second, this danger of circumvention is posed by 

contributions to PACs and political parties. Third, 

this concern stems from the contribution of “massive 

amounts of money.” Id. at 38. 

 

2

 The full quote reads: 

In addition to the $ 1,000 limitation on the 

nonexempt contributions that an individual may 

make to a particular candidate for any single 

election, the Act contains an overall $ 25,000 

limitation on total contributions by an 

individual ... The overall $ 25,000 ceiling does 

impose an ultimate restriction upon the number 

of candidates and committees with which an 

individual may associate himself by means of 

financial support. But this quite modest 

restraint upon protected political activity serves 

to prevent evasion of the $ 1,000 contribution 

limitation by a person who might otherwise 

contribute massive amounts of money to a 

particular candidate through the use of 

unearmarked contributions to political 

committees likely to contribute to that 

candidate, or huge contributions to the 

candidate's political party. The limited, 

additional restriction on associational freedom 

imposed by the overall ceiling is thus no more 

than a corollary of the basic individual 

contribution limitation that we have found to be 

constitutionally valid (emphasis supplied). 
12 

This framework has never been disturbed.3

Indeed, the district court explicitly keyed its decision 

to the “ability of aggregate limits to prevent evasion 

of the base limits.” James, at App. 7 (citing Buckley, 

424 U.S. at 38). Consequently, the question posed by 

this appeal is a simple one: once Congress has set an 

aggregate limit, may it subdivide that limit, and 

require that certain funds be contributed to parties 

and PACs instead of directly to candidates? And the 

answer to this question must, under Buckley, turn 

on whether such a requirement helps or hinders the 

ability of contributors to circumvent or “evade the 

base limits” on contributions to candidates. 

 

 

3 McConnell v. FEC is not to the contrary. Indeed, in that case 

the Court merely noted: 

 [c]onsiderations 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” 

and “[t]he relevant inquiry is whether the 

mechanism adopted to implement the 

contribution limit, or to prevent circumvention 

of that limit, burdens speech in a way that a 

direct restriction on the contribution itself 

would not. 540 U.S. at 137-138, 138-139 (2003). 
13 

III. BCRA and the FEC’s implementing 

regulations unambiguously create an 

overall aggregate cap on contributions.

 The district court held that “[t]here is no 

$117,000 total aggregate limit in the statute; 

instead, there are merely sublimits of $46,200 and 

$70,800. Remove one of the sublimits, and there is 

no higher constraint.”4 James, at App. 9. This novel 

belief was first advanced by the Commission in its 

Opposition to Plaintiff’s Response to Order to Show 

Cause (“OPRSC”). OPRSC at App. 100 (“[t]here is no 

$117,000 aggregate contribution limit.”). Appellant 

was provided with no opportunity to contest this 

view before her case was dismissed. 

The district court’s ruling misinterprets the 

statutory scheme. Indeed, the FEC’s implementing 

regulation, all possible windows into the collective 

intent of the Congress, and the text of the statute itself 

clearly establish that an aggregate limit of $95,000 – 

$117,000 after indexing for inflation – was intended 

merely as an increase of the old FECA aggregate limit 

of $25,000, which had been devalued by 28 years of 

inflation. The sub-aggregate limits were added late in 

the legislative process in order to direct to whom 

various slices of that $95,000 could be contributed. 

The Federal Election Commission itself could 

not have been clearer on this point. Its implementing 

 

4

 The district court’s use of the word “sublimit” is telling. One 

cannot have “sublimits” unless they subdivide an underlying, 

overall limit. 
14 

regulation unambiguously refers to the overall 

aggregate limit: “In the two-year period beginning on 

January 1 of an odd-numbered year and ending on 

December 31 of the next even-numbered year, no 

individual shall make contributions aggregating 

more than $95,000.” 11 C.F.R. 110.5(b)(1). Only then 

does the regulation go on to enumerate the sublimits of $37,500 to candidate committees and 

$57,500 for “other contributions.” These are tellingly 

enumerated in subparts (i) and (ii) of 11 C.F.R. 

110.5(b).5 

It is not clear how the Commission can claim 

in this litigation that the overall aggregate limit does 

not exist, when its regulations say otherwise. 

Indeed, this theory was first proposed by the 

Commission in response to the district court’s order 

and, unlike BCRA’s implementing regulations, have 

never been considered or passed upon by the 

commissioners themselves. 

A. BCRA’s legislative history convincingly 

demonstrates that Congress intended to 

establish an updated overall aggregate 

limit, subdivided to advantage party and 

political committees at the expense of 

candidate committees.

 The BCRA biennial aggregate limit of $95,000 

indexed to inflation was born out of the $25,000 

 

5

 Per 11 C.F.R. § 110.5(b)(3), the limits are indexed to inflation, 

hence the current total aggregate of $117,000. 
15 

annual limit imposed by the Federal Election 

Campaign Act of 1974. See Buckley, 424 U.S. at 38. 

In the final day of Senate debate on BCRA, Senator 

Chris Dodd specifically noted that the “[t]he 

aggregate individual contribution limit to parties, 

PACs, and candidates per year is increased from 

$25,000 per year to $95,000 per election cycle, 

including not more than $37,000 [sic] to candidates 

and $20,000 to the national party committees.” 148 

Cong. Rec. S. 2155 (2002). 

 Senator Dianne Feinstein of California, 

together with Senator Fred Thompson of Tennessee, 

originally intended to increase “the individual 

aggregate contribution limit, the amount that can be 

given to PACs, parties, and candidates 

combined...from the...$25,000 per year to $37,500 

per year.... [creating a] $75,000 per cycle limit.” 148 

Cong. Rec. S 2154.6

 But as Senator Feinstein noted 

the day of Senate passage of the House version of 

BCRA, “[t]he House bill creates a $95,000 per cycle 

aggregate limit. Of that [aggregate limit], $37,500 

can be given to candidates and $57,500 can be given 

to parties and PACs. But to actually max out, an 

individual must contribute $20,000 of the aggregate 

to national party committees.” Id. 

 Senator Dodd and Senator Feinstein’s 

understanding is further supported by a 

 

6

 Indeed, the Thompson-Feinstein proposal emerged out of 

Senator Thompson’s proposed amendment to the 2001 version 

of BCRA, which would have simply raised the aggregate limit 

from $25,000 to $50,000. 147 Cong. Rec. S. 2958. 
16 

Congressional Research Service summary of the law, 

which notes that BCRA “[r]aise[d] the aggregate 

limit to $95,000 per 2-year cycle, with sub-limits.” 

Joseph E. Cantor and L. Paige Whitaker, Cong. 

Research Serv., RL31402, CRS Report for Congress: 

Bipartisan Campaign Reform Act of 2002: Summary 

and Comparison with Previous Law CRS-2 (2004). 

This reference to a “raise” of the aggregate limit 

further demonstrates that BCRA was understood to 

increase FECA’s already-extant, unitary limit. 

Finally, there is the plain text of the statute 

itself. The relevant portion of BCRA states that: “no 

individual may make contributions aggregating 

more than” the exact sublimits. 2 U.S.C. §441a(a)(3). 

And these two sublimits may, as a matter of logic, be 

added together to determine the aggregate ceiling on 

the total amount of money that an individual may 

give toward political campaigns. That amount, 

created and sanctioned by Congress, is $117,000. 

Congress established an overall limit on 

aggregate contributions to federal political 

committees. This is the inescapable meaning of 

BCRA’s text, the statements of those who wrote and 

voted for that text, and of the Federal Election 

Commission’s own interpretation of that text. Ms. 

James does not challenge the wisdom of this overall 

amount. She merely asks whether Congress may 

require some of those funds to be given to parties 

and PACs, instead of directly to candidates. 

 
17 

IV. BCRA’s statutory scheme increases, 

rather than decreases, the risk that 

large contributions to PACs and parties 

will be used to circumvent the limits on 

contributions to candidates. 

In dismissing Appellant’s case, the district court 

relied upon its decision in McCutcheon. James v. 

FEC, No. 12-01451, App. 6-11. But unlike 

McCutcheon, James does not challenge the overall 

cap on contributions. Thus, while McCutcheon 

challenged a central holding of Buckley – that 

aggregate limits are generally constitutional – 

James does not. In fact, her claim is that the anticircumvention concern of Buckley is, if anything, 

better addressed by allowing her to contribute to 

candidates rather than forcing her to contribute to 

parties.

McCutcheon emphasized the threat posed by 

parties potentially being used to circumvent 

contribution limits. McCutcheon v. FEC, --- F. Supp. 

2d ---, No. 12-1034, App. 28-30. This is 

unremarkable, as this danger receives special 

consideration in the case law. See, e.g., Buckley, 424 

U.S. at 38. Indeed, appellant does not dispute 

McCutcheon’s analysis. Rather, this case arises 

precisely because BCRA aggravates the party passthrough concern. An individual must donate to a 

national party in order to contribute the maximum 

amount allowed by BCRA’s overall aggregate limit. 
18 

 Appellant wishes, instead, to contribute those 

funds directly to individual candidate committees. 

Doing so would lessen, not increase, the risk that the 

candidate contribution limit would be circumvented. 

A. In order to contribute the overall 

amount found to be noncorrupting, 

BCRA requires an individual to 

contribute to parties. 

By operation of federal law and regulation, an 

individual may not contribute more than $117,000 in 

a biennium. Within that $117,000 limit, there is a 

limit of $46,200 on contributions to candidates and a 

limit of $70,800 to PACs and parties. 11 C.F.R. § 

110.5.7Within that sub-aggregate limit on PAC and 

party contributions, there is yet another limitation, 

which restricts the amount of money an individual 

can give to local parties and PACs. Of the $70,800 

allowed to PACs and parties, contributions to state 

and local parties and PACs are limited to $46,200. 

76 Fed. Reg. at 8370. Therefore, simple arithmetic 

dictates that an individual can only reach the PAC 

and party sub-aggregate limit of $70,800 (and 

therefore the aggregate biennial limit of $117,000) 

 

7

 These amounts are indexed to inflation pursuant to 11 C.F.R. 

§ 110.17, and published at 76 Fed. Reg. 8368, 8370 (Feb. 14, 

2011). They are also available on the FEC’s website at: 

http://www.fec.gov/pages/brochures/contriblimits.shtml. 
19 

by contributing $24,600 to national party 

committees.8

B. Contributions to national party 

committees, pose a far greater risk of 

circumvention than do contributions 

to candidate committees. 

 The lower court ruled against Appellant in 

part because it held that the “anti-circumvention 

rationale...applie[s] equally to candidate 

committees.” App. 8. But, in fact, contributions to 

national parties pose a far greater danger of being 

used to circumvent the individual contribution limit. 

 The district court offered the following 

hypothetical in dismissing Appellant’s case: 

[i]f the $46,200 aggregate limit on 

candidate contributions were erased, 

James or anyone else could give at least 

$2.34 million (435 House candidates 

plus 33 Senate candidates multiplied by 

$5,000 – that is, $2,500 for primary and 

$2,500 for general election) to candidate 

committees (or possibly to a joint 

fundraising committee), which could 

then transfer those sums to certain 

 

8

 The $24,600 figure is obtained by subtracting $46,200, the 

PAC and local and state party limit, from $70,800, the overall 

PAC and party limit. 
20 

preferred candidates or even to noncandidate national committees. App. 8-9. 

 The first problem with this analysis, of course, 

is that it posits contributions of $2.34 million. 

Appellant’s Verified Complaint explicitly states that 

she would contribute only $117,000. V.Compl. at 

App. 40-41, 43. Her claims involve the distribution of 

funds under BCRA’s aggregate cap, not the existence 

of the cap itself. 

 The question, then, is whether the same pool 

of money – $70,800 – is more likely to be funneled to 

a single candidate if it is given to a minimum of 

fifteen federal candidates9 (who presumably require 

resources for their own elections) or to a much 

smaller number of large political committees (which 

exist principally to provide funds and expertise to 

external candidates). 

 Under current law, an individual is permitted 

to give up to $2,500, per election, to a candidate 

committee. 2 U.S.C. § 441a(a)(1)(A). Such 

committees may, in turn, contribute a maximum of 

$2,000, per election, to another candidate committee. 

2 U.S.C. § 432(e)(3)(B). Of course, this is the total 

amount that may be transferred per election, and 

not the portion of each $2,500 contribution that may 

be passed to another candidate. 

 

9

 $70,800 divided “by $5,000 – that is, $2,500 for primary and 

$2,500 for general election” James, at App. 9. 
21 

 Both the FEC and the district court note that 

a candidate committee may also contribute 

unlimited funds to a political party. James, at App. 

7-9, OPRSC at App. 99. But this is a red herring. 

Whether Appellant contributed $70,800 directly to 

the national party committees, as is presently 

allowed, or those contributions were made indirectly 

by candidate committees, is immaterial. 

 Consequently, if Appellant were permitted to 

contribute to additional candidates under the 

aggregate contribution cap, her $70,800 in additional 

aggregated contributions could be diverted only by 

coordinating a large number of conspirators. If she 

“maxed out” to each, she could contribute to as few 

as fifteen candidates. If she wished to pass through 

the entirety of her contributions, she would need to 

give to eighteen candidates – each of whom has 

strong incentives to use her contributions for his or 

her own campaign. 

In stark contrast, an individual may give up to 

$30,800, per year, to a party’s national committee, 

Senate committee, and House committee. 2 U.S.C. 

§441a(a)(1)(B). A contributor may divide her $70,800 

in non-candidate contributions among these entities 

as she sees fit. 11 C.F.R. § 110.1(c)(3). 

 National parties may contribute $5,000 to 

candidate committees per election. 2 U.S.C. §§ 

441a(a)(2)(A), 441a(a)(4), 431(4), and 431(16). But 

they are also subject to special rules regarding, for 

examples, Senate campaigns: the Democratic and 
22 

Republican senate campaign committees may, in 

combination with the Democratic or Republican 

national committees, give up to $43,100 to “a 

candidate for nomination for election, or for election, 

to the United States Senate during the year in which 

an election is held in which he is a candidate.” 2 

U.S.C. § 441a(h) (2012) (indexed for inflation per 11 

C.F.R. § 110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 

2011)). 

 Moreover, the national committee of a political 

party may make coordinated expenditures with 

House and Senate candidates up to the greater value 

of “2 cents multiplied by the voting age population of 

the State” or “$20,000.” 2 U.S.C. §441a(d)(3)(A) 

(indexed for voting age population at 76 Fed. Reg. at 

8369 (Feb. 14, 2011)). Coordinated expenditures are 

the functional equivalent of a contribution. 

McConnell, 540 U.S. at 188 (“In addition, party 

committees are entitled in effect to contribute to 

candidates by making coordinated expenditures, and 

those expenditures may greatly exceed the 

contribution limits that apply to other donors.”). 

Truly, “BCRA actually favors political parties in 

many ways.” Id. 

Consequently, the same $70,800 that, if given 

to candidates, would need to be spread among fifteen 

co-conspirators, could instead be given to as few as 

three national party committees. Those committees 

in turn may make far larger contributions directly to 

their party’s candidates. 
23 

 It is abundantly clear that these large 

contributions to centralized committees pose the 

greater risk of circumventing the $2,500 limit on 

contributions to each candidate committee. But a 

simple example will help illustrate the point. 

 Suppose a contributor wishes to support a 

particular Republican Senate candidate, and is 

willing to violate the law in order to evade the 

$2,500 limit on contributions to that candidate. 

It is currently legal for an individual to 

contribute $30,800 to both the Republican National 

Committee and the Republican Senatorial Campaign 

Committee. Those two entities may then use that 

money to give a single check of $43,100 to a Senate 

candidate. Or, they may make coordinated 

expenditures – the equivalent of a contribution – on 

behalf of that candidate, in a minimum amount of 

$91,000. 10 In either case, perfectly legal routes exist 

for the contributor’s entire $61,600 to end up 

supporting the preferred candidate. 

 By contrast, if the same individual wanted to 

use candidate committees to funnel $61,600 to a 

preferred candidate, a minimum of sixteen11 federal 

 

10 The coordinated party expenditures “range from $91,200 to 

$2,593,100 for Senate nominees, depending on each state’s 

voting age population.” Federal Election Commission, 2012 

Coordinated Party Expenditure Limits, available at 

http://www.fec.gov/info/charts_441ad_2012.shtml. 

11 Fifteen candidates making the maximum contribution of 

$4,000 ($2,000 for the primary and $2,000 for the general 

election) and a fifteenth contributing $1,600. 
24 

candidates would need to agree to send the 

maximum amount to a single recipient.12 

 There is no need to belabor the point. This 

Court has already noted the dangers posed by party 

committees. FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 459-460 (2001) (“Colorado II”). 

The point is a comparative one: the danger of 

circumvention is no higher, and in fact rather lower, 

if contributors may contribute funds to multiple 

candidate committees instead of a few party 

committees. Perhaps this is why Appellant could 

find no authority, and the district court cited none, 

stating that candidate committees are a likely 

conduit for circumventing campaign contribution 

limits. 

C. The district court, for the first time, 

held that contributions to candidate 

committees pose the same risk of 

circumvention as do contributions to 

PACs and Parties. 

 

 The district court acknowledged that “the 

hypothetical [it] offered [in McCutcheon] involved 

[only non-candidate committees].” James, at App. 8. 

 

12 In both cases, the $9,200 remaining under the contributor’s 

aggregate cap could be given to the Republican Congressional 

Campaign Committee to be used for coordinated expenditures 

in favor of candidates for the House of Representatives. Or it 

could be given to political committees which may, in turn, 

contribute to candidates. 
25 

Nevertheless, it asserted that a hypothetical 

demonstrating candidate committee circumvention 

is “easily invented.” Even if this conclusion were 

legally sound, it is unprecedented: neither Congress 

nor any court has ever before considered 

contributions directly to candidate committees as 

posing the same risk of circumvention as (much 

larger) contributions to PACs or party committees. 

BCRA’s legislative history indicates that the 

chief intent behind the Act’s contribution limits was 

eliminating corruption caused by “soft money” party 

contributions. By contrast, Appellant ascertained no 

evidence in the Act’s extensive legislative history 

that Congress even considered candidate committee 

circumvention a possibility. Instead, as far back as 

its FECA debates, Congress specifically excluded 

candidate contributions from those with 

circumvention potential, noting, “[t]he...decision to 

impose more precisely defined limitations on the 

amount an individual may contribute to a political 

committee, other than a candidate's committees, and 

to impose new limits on the amount a person or 

multicandidate committee may contribute to a 

political committee, other than candidates' 

committees, is predicated on the following 

considerations: first, these limits restrict the 

opportunity to circumvent the...limits on 

contributions to a candidate...” H. R. Rep. No. 94-

1057, 57-58 (1976) (Conf. Rep.) (emphasis added).13

 

13 The Report continues: 
26 

 Like Congress, this Court has never 

recognized candidate committee circumvention. 

Instead, its only opinion directly addressing the 

aggregate limits specifically recognized the unique 

circumvention danger posed by contributions to 

parties (and implicitly, though to a lesser extent, 

PACs). Buckley, 424 U.S. at 38. Similarly, 

McConnell upheld BCRA’s ban on soft money 

contributions to parties—at least in part—because of 

their unique potential to circumvent contribution 

limits. 540 U.S. at 154-55. And McConnell, like 

Buckley, does not recognize a threat of candidate 

committee circumvention. 

Thus, the district court is the only entity to 

find that contributions to candidate committee pose 

the same risk of corruption as do contributions to 

political committees and parties. 

 

 

Conclusion

The Court should note probable jurisdiction. 

 

 

second, these limits serve to assure that candidates' 

reports reveal the root source of the contributions 

the candidate has received; and third, these 

limitations minimize the adverse impact on the 

statutory scheme caused by political committees 

that appear to be separate entities pursuing their 

own ends, but are actually a means for advancing a 

candidate's campaign. 
27 

 Respectfully submitted, 

 ALLEN DICKERSON

 Counsel of Record 

 TYLER MARTINEZ

 ZAC MORGAN

 ANNE MARIE MACKIN

 CENTER FOR COMPETITIVE 

 POLITICS

 124 S. West Street, Suite 201 

 Alexandria, Virginia 22314 

 (703) 894-6846 

 adickerson@campaignfreedom.org 

 

 Counsel for Appellant

November 30, 2012 
App-1

APPENDIX A 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

(JEB)(JRB)(RLW) 

 

Three-Judge Court 

ORDER

For the reasons set forth in the accompanying 

Memorandum Opinion, the Court ORDERS that: 

1. Plaintiff’s Motion for Preliminary 

Injunction is DENIED; 

2. The Case is DISMISSED; and 

3. Judgment is ENTERED in favor of 

Defendant Federal Election 

Commission. 

IT IS SO ORDERED. 

 /s/ JANICE ROGERS BROWN

 United States Circuit Judge 
App-2

 /s/ ROBERT L. WILKINS

 United States District Judge 

 /s/ JAMES E. BOASBERG

 United States District Judge 
App-3

APPENDIX B 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

(JEB)(JRB)(RLW) 

 

Three-Judge Court 

Before: BROWN, Circuit Judge; WILKINS, District 

Judge; and BOASBERG, District Judge 

MEMORANDUM OPINION 

BOASBERG, District Judge: 

Plaintiff Virginia James wishes to contribute 

to federal candidates and their committees. 

Although she has no desire to exceed the $2,500 

limit on contributions to particular candidates, she 

seeks to make contributions in the aggregate beyond 

the $46,200 ceiling currently allowed by the 

Bipartisan Campaign Reform Act of 2002. She has, 

accordingly, brought this suit against the Federal 

Election Commission, arguing that the aggregate 

limit on candidate contributions is unconstitutional. 
App-4

At the time she filed this action, this same 

three-judge Court was considering the case of 

McCutcheon v. FEC, No. 12-cv-1034. The plaintiffs 

there had challenged several of BCRA’s aggregate 

limits, including the one James takes issue with. We 

consequently stayed James’s suit pending the 

resolution of McCutcheon. Having now rejected all of 

the McCutcheon plaintiffs’ claims, see --- F. Supp. 2d 

---, 2012 WL 4466482 (D.D.C. Sept. 28, 2012), the 

Court may turn to James’s suit. Finding no basis to 

distinguish it from McCutcheon, the Court will 

dismiss her case as well. 

I. Background 

According to the Complaint, which must be 

presumed true for purposes of this Opinion, Plaintiff 

is “a private individual” who “has given to political 

candidates in the past and plans to continue doing 

so.” Compl., ¶ 5. During this biennium, she “has 

contributed at least $27,000 to candidate 

committees.” Id., ¶ 15. She wishes, however, “to 

contribute more than the current sub-aggregate 

limit of $46,200 to various political candidates, but 

does not wish to exceed the $2,500 limit on 

contributions to each individual candidate.” Id., ¶ 5 

(citation omitted). In addition, she does not “wish to 

exceed the overall biennial limit of $117,000 on all 

contributions to candidates, PACs, and parties.” Id.

(citation omitted). “Rather, she wishes to take money 

that she may legally contribute to PACs and parties, 

and instead contribute it directly to candidates she 

wishes to support.” Id. Indeed, the “only
App-5

contributions Ms. James wishes to make during the 

balance of this biennium are direct contributions of 

up to $2,500 to individual candidate committees.” 

Id., ¶ 21 (emphasis original). 

To ensure that her desired contributions are 

legal, she filed this suit on August 31, 2012, 

challenging BCRA’s aggregate limit of $46,200 on 

contributions to individual candidates as facially 

unconstitutional (Count I) and unconstitutional as 

applied to her (Count II). She then moved five days 

later for a preliminary injunction enjoining the FEC 

from enforcing the aggregate limits on contributions 

to candidate committees. See ECF No. 5. 

An action filed after December 31, 2006, that 

is “brought for declaratory or injunctive relief to 

challenge the constitutionality of any provision” of 

BCRA “shall be filed in the United States District 

Court for the District of Columbia and shall be heard 

by a 3-judge court convened pursuant to [28 U.S.C. § 

2284]” if the plaintiff requests such a court. See Pub. 

L. No. 107-155, 116 Stat. 113-14. As Plaintiff here 

filed an unopposed request for a 3-judge court, Chief 

Judge David B. Sentelle assigned this matter to us. 

See Amended Order of September 18, 2012. 

Meanwhile, back in June 2012, Shaun 

McCutcheon and the Republican National 

Committee had brought an action against the FEC 

challenging the limits on contributions to both 

candidate and non-candidate committees. This 

matter was assigned to the three judges of this 

Court, who received lengthy briefing from the 
App-6

parties and amici curiae and held a hearing on 

September 6, 2012. Not wishing to duplicate efforts, 

we stayed James’s case on September 19 pending the 

decision in McCutcheon. See Minute Order of Sept. 

19, 2012. On September 28, the Court issued its 

Opinion in McCutcheon, rejecting all of the plaintiffs’ 

challenges and dismissing the case. See 2012 WL 

4466482, at *7. On October 1, we lifted the stay here 

and ordered Plaintiff to show cause why her case 

should not be dismissed for the reasons set forth in 

McCutcheon. See Minute Order of Oct. 1, 2012. 

Plaintiff then filed a Response to the Order to Show 

Cause, and the FEC has now, after invitation from 

the Court, filed an Opposition. 

II. Analysis 

Our holding in McCutcheon must be the point 

of departure here. By way of background, we first 

explained the structure of BCRA, noting, “During 

each two-year period starting in an odd-numbered 

year, no individual may contribute more than an 

aggregate of $46,200 to candidates and their 

authorized committees or more than $70,800 to 

anyone else.” 2012 WL 4466482, at *2 (citing 2 

U.S.C. § 441a(a)(3)). Added together, these sums 

equal $117,000. McCutcheon himself desired to 

contribute additional amounts to candidates, which 

would yield a total of $54,400, thus exceeding the 

$46,200 cap. Id. He also wished to make 

contributions to national party committees of 

$75,000, which would similarly exceed the $70,800 

ceiling. Id.
App-7

McCutcheon, accordingly, challenged both 

aggregate limits, arguing, for instance, that the 

$46,200 candidate limit was “unsupported by any 

cognizable government interest . . . at any level of 

review” and was “unconstitutionally low.” Id. at *3 

(internal quotation marks omitted). 

In rejecting his challenge, we first disagreed 

with his position that the limits should be subject to 

strict scrutiny: “Contribution limits are subject to 

lower scrutiny because they primarily implicate the 

First Amendment rights of association, not 

expression, and contributors remain able to 

vindicate their associational interests in other ways . 

. . .” Id. at *4 (citing Buckley v. Valeo, 424 U.S. 1, 22, 

28 (1976)). The Court then explained that “[t]he 

government may justify the aggregate limits as a 

means of preventing corruption or the appearance of 

corruption, or as a means of preventing 

circumvention of contribution limits imposed to 

further its anticorruption interest.” Id. (citing 

Buckley, 424 U.S. at 26-27, 38; footnote omitted). We 

thus held, “[W]e cannot ignore the ability of 

aggregate limits to prevent evasion of the base 

limits.” Id. at *5 (citing Buckley, 424 U.S. at 38). 

Evasion could occur, for example, where large sums 

were contributed to a joint fundraising committee, 

which could then transfer money back “to a single 

committee’s coffers.” Id. (citations omitted). The 

committee, in addition, could “use the money for 

coordinated expenditures, which have no ‘significant 

functional difference’ from the party’s direct 

candidate contributions.” Id. (quoting FEC v. Colo. 
App-8

Republican Fed. Campaign Comm., 533 U.S. 431, 

460 (2001)). 

We also “reject[ed] Plaintiffs’ arguments that 

the limits are unconstitutionally low and 

unconstitutionally overbroad” because, for one thing, 

“[i]t is not the judicial role to parse legislative 

judgment about what limits to impose.” Id. at *6 

(citing, inter alia, Randall v. Sorrell, 548 U.S. 230, 

248 (2006) (plurality); Buckley, 424 U.S. at 30 (“[I]f 

it is satisfied that some limit on contributions is 

necessary, a court has no scalpel to probe, whether, 

say, a $2,000 ceiling might not serve as well as 

$1,000.”)). 

James nevertheless maintains that her case 

does not fall within the ambit of McCutcheon’s fairly 

broad holding for three principal reasons. First, she 

asserts that her challenge does not implicate the 

anti-circumvention rationale relied on by 

McCutcheon. See OSC Resp. at 1-2. More 

specifically, she notes that the plaintiffs in 

McCutcheon “sought to lift the aggregate limits on 

non-candidate committees, precisely the entities 

Buckley identifies as potential conduits for 

unearmarked contributions.” Id. at 4. In this she is 

only half right. McCutcheon did not limit its anticircumvention rationale to only non-candidate 

committees; instead, the reasoning applied equally 

to candidate committees. While the hypothetical we 

offered there involved the former, see 2012 WL 

4466482, at *5, one is just as easily invented for the 

latter: If the $46,200 aggregate limit on candidate 

contributions were erased, James or anyone else 
App-9

could give at least $2.34 million (435 House 

candidates plus 33 Senate candidates multiplied by 

$5,000 – that is, $2,500 for primary and $2,500 for 

general election) to candidate committees (or 

possibly to a joint fundraising committee), which 

could then transfer those sums to certain preferred 

candidates or even to non-candidate national 

committees. See FEC Opp. at 4-5 (detailing 

candidate-to-candidate transfers). 

While James believes this could not happen 

because “[s]he is not challenging the biennial 

aggregate limit of $117,000,” OSC Resp. at 10 

(footnote omitted), and “she does not intend to give 

more than the $117,000 Congress already allows,” id.

at 3 (footnote omitted), such belief rests on a 

fundamental miscomprehension of BCRA. There is 

no $117,000 total aggregate limit in the statute; 

instead, there are merely sublimits of $46,200 and 

$70,800, which add up to $117,000. See 2 U.S.C. §§ 

441a(a)(3)(A), (B). Remove one of the sublimits, and 

there is no higher constraint. 

James next contends that her case is different 

from McCutcheon because, instead of his facial 

challenge, she “brings a narrow as-applied challenge, 

one which accepts both the base limitation and the 

overall limitation imposed by Congress.” OSC Resp. 

at 2. Passing the fact that one of her two counts is a 

facial challenge, see Compl. at 6, she nonetheless 

errs in her description of the law. As we just pointed 

out, there is no “overall limitation” of $117,000; there 

are only the two sublimits. So the notion that “this 
App-10

case presents specific contributions with specific 

limits,” OSC Resp. at 8, is not accurate. 

While Plaintiff is correct that a “decision on a 

facial challenge does not foreclose later, as-applied 

challenges,” id. at 7 (citing Wisconsin Right to Life, 

Inc. v. FEC, 546 U.S. 410 (2006)), another threejudge court in this District has guidance on this type 

of suit: 

In general, a plaintiff cannot 

successfully bring an as-applied 

challenge to a statutory provision based 

on the same factual and legal 

arguments the Supreme Court 

expressly considered when rejecting a 

facial challenge to that provision. Doing 

so is not so much an as-applied 

challenge as it is an argument for 

overruling a precedent. 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 

150, 157 (D.D.C. 2010) (three-judge court), aff’d 

mem., 130 S. Ct. 3544 (2010). It should be recalled 

that McCutcheon only wanted to contribute $54,400 

to candidate committees, which represents less than 

half the $117,000 James seeks to give. See 2012 WL 

4466482, at *2. The factual arguments James raises, 

therefore, are even less compelling than 

McCutcheon’s, while the legal arguments are no 

different in relation to candidate limits. And even if 

Plaintiff had been right that a $117,000 limit existed 

– thereby enabling her to claim that such a limit was 

constitutional, but $46,200 was not – McCutcheon
App-11

explained that Congress, not the courts, draws these 

lines. See 2012 WL 4466482, at *6. 

James’s final argument is that even if 

McCutcheon is viewed as an as-applied challenge, 

the facts here are so dissimilar as to render 

McCutcheon non-binding. See OSC Resp. at 2-3. In 

particular, James argues that “[s]he brings this 

challenge alone, without any political party, political 

action committee, or other entity. She is not 

challenging any of the other sub-aggregate 

contribution limits. She is not challenging the 

biennial aggregate limit of $117,000.” Id. at 10 

(footnote and internal footnote omitted). Yet none of 

these points, singly or in concert, is remotely 

persuasive: McCutcheon’s holding did not rest on the 

presence of the RNC as a plaintiff; that James is not 

challenging the non-candidate limit does not 

strengthen her candidate-limit challenge; and, as we 

have reiterated, there is no $117,000 biennial limit 

that exists beyond the sublimits. 

III. Conclusion 

 

Because the outcome of James’s suit is 

dictated by what we have already decided in 

McCutcheon, we will contemporaneously issue an 

Order dismissing the case. 

 /s/ JANICE ROGERS BROWN

 United States Circuit Judge 

 /s/ ROBERT L. WILKINS
App-12

 United States District Judge 

 /s/ JAMES E. BOASBERG

 United States District Judge 

Date: October 31, 2012

 
App-13

APPENDIX C 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

(JEB)(JRB)(RLW) 

 

NOTICE OF APPEAL 

 Notice is given that Plaintiff Virginia James 

hereby appeals to the United States Supreme Court 

from this Court’s Order denying Plaintiff’s Motion 

for Preliminary Injunction, Dismissal and Judgment 

in favor of Defendant Federal Election Commission 

(filed Oct. 31, 2012; Doc. 20). This notice is timely 

submitted within ten days of the aforementioned 

order. 

Direct appeal is taken pursuant to § 403(a)(3) 

of the Bipartisan Campaign Reform Act of 2002. 2 

U.S.C. § 437h n. 5. 

 
App-14

Respectfully submitted this 1st day of November, 

2012. 

 /s/Allen Dickerson

 Allen Dickerson (D.C. Bar No. 1003781)

 Tyler Martinez* 

 Anne Marie Mackin* 

 Center for Competitive Politics 

 124 S. West Street, Suite 201 

 Alexandria, Virginia 22314 

 Phone: 703.894.6800 

 *Admitted pro hac vice. 

 
App-15

CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of 

November, 2012, I caused the foregoing document to 

be sent via First Class and electronic mail to: 

Adav Noti 

Acting Assistant General Counsel 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

(202) 694-1384 

anoti@fec.gov 

Counsel for Defendant

 /s/ Allen Dickerson

 Allen Dickerson 

 

 
App-16

APPENDIX D 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

SHAUN 

McCUTCHEON, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1034 

 

(JEB)(JRB)(RLW) 

 

Three-Judge Court 

 

Before: BROWN, Circuit Judge; WILKINS, District 

Judge; and BOASBERG, District Judge. 

MEMORANDUM OPINION 

 

 BROWN, Circuit Judge: 

 Congress enacted the Federal Elections 

Campaign Act of 1971 (FECA) to “promote fair 

practices in the conduct of electin campaigns for 

Federal political offices.” Pub. L. No. 92-225, 

preamble, 86 Stat. 3, 3 (1972). Since 1972, the law 

has changed significantly. The current iteration of 

FECA imposes contribution limits stratified to track 

both the identity of the contributor and the identity 

of the receiver. Individuals, however, cannot 
App-17

necessarily contribute as much as they might wish 

within these limits; they, and only they, must 

comply with a second regulatory tier: a set of 

aggregate contribution limits. 2 U.S.C. § 441a(a)(3). 

Plaintiffs Shaun McCutcheon and the Republican 

National Committee (“RNC”) now challenge these 

aggregate limits as unconstitutional. We reject their 

challenge. 

I. Background 

 

A. Legal Background

 In 1974, Congress amended FECA to prohibit 

persons from contributing more than $1,000 to any 

political candidate, individuals from contributing 

more than an aggregate of $25,000 in any calendar 

year, and political committees from contributing 

more than $5,000 to any political candidate. FECA 

Amendments of 1974 § 101, Pub. L. No. 93-443, 88 

Stat. 1263, 1263. The Supreme Court ultimately 

upheld these contribution limits in the face of a First 

Amendment challenge, thought it struck down 

FECA’s expenditure limits. Buckley v. Valeo, 424 

U.S. 1, 58 (1976) (per curiam) (summarizing 

holdings). A few months after the Buckley Court 

handed down its decision, Congress amended the 

FECA to distinguish (1) between contributions by 

persons and contributions by multicandidate 

political committees, and (2) among contributions to 

candidates and their authorized committees, 

contributions to national political party committees, 

and contributions to all other political committees. 

FECA Amendments of 1976 §§ 111, 201, Pub. L. No. 
App-18

94-283, 90 Stat. 475, 486-87. Congress left the 

$25,000 aggregate limit on individuals’ contributions 

untouched, however, until the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”), which replaced the 

$25,000 aggregate limit with the bifurcated limiting 

scheme that Plaintiffs now challenge. Section 307, 

Pub. L. No. 107-155, 116 Stat. 81, 102-03. There are 

thus two sets of contribution limits: base limits 

calibrated to the identity of the contributor 

regulating how much the contributor may give to 

specified categories of recipients, and a set of 

aggregate limits regulating the total amount an 

individual may contribute in any two-year election 

cycle. Some (but not all) of these limits are 

periodically indexed for inflation. See 2 U.S.C. § 

441a(c). 

 The default base limits apply to contributions 

by “persons,” that is, individuals, partnerships, 

committees, associations, corporations, unions, and 

other organizations. See 2 U.S.C. 431(11) (defining 

“person”). FECA currently prohibits persons from 

contributing more than $2,500 per election to any 

given candidate or that candidate’s agent or 

authorized committee; more than $30,800 in any 

calendar year to each of a national political party’s 

national committee, House campaign committee, and 

Senate campaign committee; more than $10,000 in 

any calendar year to a state political party 

committee; and more than $5,000 in any calendar 

year to any other political committee. 2 U.S.C. § 

441a(a)(1); 11 C.F.R. § 110.1(b)-(d); 76 Fed. Reg. 

8,368, 8,370 (Feb. 14, 2011) (indexing for inflation). 
App-19

 These base contribution limits do not limit 

how much a contributor can contribute as long as the 

contributions remain within the limits for each 

recipient. Under the base contribution limits, for 

example, an individual might contribute $3.5 million 

to one party and its affiliated committees in a single 

election cycle.1 The aggregate limits prevent this. 

During each two-year period starting in an oddnumbered year, no individual may contribute more 

than an aggregate of $46,200 to candidates and their 

authorized committees or more than $70,800 to 

anyone else. 2 U.S.C. § 441a(a)(3); 76 Fed. Reg. at 

8,370. Of that $70,800, no more than $46,200 may be 

contributions to political committees that are not 

national political party committees. 2 U.S.C. § 

441a(a)(3); 76 Fed. Reg. at 8,370. These aggregate 

limits, which amount to a total biennial limit of 

$117,000, 11 C.F.R. § 110.5(b); 76 Fed. Reg. at 8,370, 

thus prevent individuals from contributing the 

statutory maximum to more than eighteen 

candidates. 

 FECA includes a number of provisions 

designed to prevent evasion of the various limits. 

 

1

 As amici Campaign Legal Center and Democracy 21 explain, 

because primary and general elections held during the same 

calendar year count as separate elections, 11 C.F.R. §§ 100.2, 

110.1(j), an individual might contribute $5,000 to each of a 

party’s House and Senate candidates, $30,800 to each of a 

party’s three federal party committees each year, and $10,000 

to each of a party’s fifty state committees a year. McCutcheon 

does not dispute this calculation. This $3.5 million, moreover, 

does not include contributions to PACs, a sum that would equal 

$5,000 multiplied by whatever number of PACs an individual 

desires to give to. 
App-20

First, anyone who contributes more than permitted 

may be subject to civil or criminal penalties. 2 U.S.C. 

§ 437g(a), (d). Second, indirect contributions, such as 

earmarked contributions to an intermediary, are 

deemed contributions to that candidate. 2 U.S.C. § 

441a(a)(8). Third, FECA prohibits contributions 

made in the name of someone else. 2 U.S.C. § 441f. 

Finally, contributions made or received by more than 

one “affiliated” committee are deemed to have been 

made or received by the same committee. 2 U.S.C. § 

441a(a)(5); 11 C.F.R. §§ 100.5(g), 110.3. 

B. Factual and Procedural Background

 McCutcheon is an Alabama resident eligible to 

vote in an U.S. presidential election. Thus far, 

during the 2011-2012 election cycle, he has 

contributed a total of $33,088 to sixteen different 

candidates in amounts ranging from $1,776 to 

$2,500 per election; $1,776 to each of the RNC, the 

National Republican Senatorial Committee 

(“NRSC”), and the National Republican 

Congressional Committee (“NRCC”); $2,000 to a 

nonparty political committee (the Senate 

Conservative Fund); and $20,000 to the federal 

account of a state party committee (the Alabama 

Republican Party). McCutcheon, however, wants to 

contribute more. He wants to contribute $1,776 to 

twelve other candidates and enough money to the 

RNC, NRSC, and NRCC to bring his total 

contributions up to $25,000 each. Doing either of 

these, however, would violate the aggregate limits: 

the additional candidate contributions would amount 

to aggregate candidate contributions of $54,400, and 
App-21

the additional party committee contributions would 

amount to aggregate contributions of $75,000 to 

national party committees. McCutcheon assures us 

he intends to repeat these donation patterns during 

future election cycles. 

 The RNC, meanwhile, wishes to receive 

contributions from individuals like McCutcheon that 

would be permissible under the base limits but 

violate the aggregate limit on contributions to party 

committees. Because of the aggregate limit, the RNC 

has both refused and returned contributions. The 

RNC believes that others would contribute o the 

RNC but for the limit. According to the verified 

complaint, the RNC does not control either the 

NRSC or the NRCC. 

 Plaintiffs challenge both the $46,200 

aggregate limit on candidate contributions and the 

$70,800 aggregate limit on other contributions under 

the First Amendment. They challenge the $46,200 

aggregate limit for being “unsupported by any 

cognizable government interest...at any level of 

review” and for being unconstitutionally low. They 

challenge the $70,800 aggregate limit facially, as 

applied to contributions up to $30,800 per calendar 

year to national party committees, and for being too 

low, both facially and as applied to contributions to 

national party committees. Plaintiffs also ask this 

Court for a preliminary injunction to enjoin Federal 

Election Commission (“FEC”) enforcement of the 

aggregate limits. We consolidated the preliminary 

injunction hearing with the hearing on the merits 

and now resolve both issues. 
App-22

II. Discussion 

 

A. Level of Scrutiny

 Both contribution limits and expenditure 

limits implicate “the most fundamental” First 

Amendment interests, but each does so in a different 

way. Buckley, 424 U.S. at 14. The Supreme Court 

has accordingly applied different levels of scrutiny to 

each: expenditure limits are subject to strict 

scrutiny, while contribution limits will be valid as 

long as they satisfy “the less demand of being closely 

drawn to match a sufficiently important interest.” 

McConnell v. Fed. Election Comm’n, 540 U.S. 93, 

136 (2003) (quoting Fed. Election Comm’n v. 

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

other grounds by Citizens United v. Fed. Election 

Comm’n, 130 S. Ct. 876, 913 (2010). The Court has 

never repudiated this distinction. See Ariz. Free 

Enter. Club’s Freedom Club PAC v. Bennett, 131 S. 

Ct. 2806, 2817 (2011) (distinguishing between 

scrutiny of contributions and expenditures). 

 Plaintiffs argue that the aggregate limits 

must be subject to strict scrutiny because laws 

burdening political speech are subject to strict 

scrutiny and the aggregate limits “similarly ‘burden’ 

First Amendment rights.” This syllogism is rooted in 

Buckley itself. The Buckley Court did not 

unequivocally hold that political expenditures are 

speech. Rather, it drew on the fact that “virtually 

every means of communicating ideas in today’s mass 

society requires the expenditure of money” to hold 

that “[a] restriction on the amount of money a person 
App-23

or group can spend on political communication 

during a campaign necessarily reduces the quantity 

of expression by restricting the number of issues 

discussed, the depth of their exploration, and the 

size of the audience reached.” 424 U.S. at 19. Thus, 

the Court suggested, contribution limits might 

sometimes implicate rights of expression in more 

than a “marginal” way, like a spiking seismograph at 

the onset of an earthquake. More recently, Citizens 

United proclaimed that “[l]aws that burden political 

speech are ‘subject to strict scrutiny,’ 130 S. Ct. at 

898, and this Court relied on that principle to 

preliminarily enjoin the FEC from enforcing limits 

on contributions to a political committee interested 

in making independent expenditures, Carey v. Fed. 

Election Comm’n, 791 F. Supp. 2d 121, 125, 128 

(D.D.C. 2011).2 Although we acknowledge the 

constitutional line between political speech and 

political contributions grows increasingly difficult to 

discern, we decline the Plaintiffs’ invitation to 

anticipate the Supreme Court’s agenda. See 

Rodriguez de Quijas v. Sherson/Am. Express, Inc., 

490 U.S. 477, 484 (1989) (“If a precedent of this 

Court has direct application in a case, yet appears to 

rest on reasons rejected in some other line of 

decisions, the Court of Appeals should follow the 

case which directly controls, leaving to this Court 

the prerogative of overruling its own decisions.”). 

 

2

 We note contributions for independent expenditures are a 

different beast altogether. The Carey court was constrained by 

the D.C. Circuit’s recent decision in SpeechNow.org v. Fed. 

Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010), holding 

unconstitutional contribution limits to independent 

expenditure groups. Id. at 695. 
App-24

Every contribution limit may “logically reduce[] the 

total amount that the recipient of the contributions 

otherwise could spend,” but for now, “this truism 

does not mean limits on contributions are 

simultaneously considered limits on expenditures 

that therefore receive strict scrutiny.” Republican 

Nat’l Comm. v. Fed. Election Comm’n, 698 F. Supp. 

2d 150, 156 (D.D.C. 2010), aff’d, 130 S. Ct. 3544 

(2010) (mem.); see Citizens United, 130 S. Ct. at 909 

(declining to “reconsider whether contribution limits 

should be subjected to rigorous First Amendment 

scrutiny”). 

 Plaintiffs try to escape the consequences of 

lesser scrutiny by arguing that the aggregate limits 

are actually expenditure limits, not contribution 

limits. Because § 441a(a)(1) already establishes base 

contribution limits, they say, “added biennial 

contribution limits are more appropriately deemed 

expenditure limits, subject to strict scrutiny.” They 

are wrong. The different between contributions and 

expenditures is the difference between giving money 

to an entity and spending that money directly on 

advocacy. Contribution limits are subject to lower 

scrutiny because they primarily implicate the First 

Amendment rights of association, not expression, 

and contributors remain able to vindicate their 

associational interests in other ways, Buckley, 424 

U.S. at 22, 28; the limits primarily implication 

associational rights rather than rights of expression 

because they impose only a “marginal” restriction on 

the contributor’s “ability to engage in free 

communication,” id. at 20; they impose only a 

marginal restriction on a contributor’s expressive 
App-25

ability because the expressive value of a contribution 

derives from the “undifferentiated, symbolic act of 

communicating,” id. at 21; and the expressive value 

of contributions are limited because “the 

transformation of contributions into political debate 

involves speech by someone other than the 

contributor,” id. The aggregate limits do not regulate 

money injected directly into the nation’s political 

discourse, the regulated money goes into a pool from 

which another entity draws to fund its advocacy. See 

Cal. Med. Ass’n v. Fed. Election Comm’n, 453 U.S. 

182, 195-96 (1981) (rejecting “speech by proxy” 

argument that limit on contributions to political 

committee is actually expenditure limit “because it 

restricts the ability of [the contributor] to engage in 

political speech through a political committee”). To 

break the chain of legal consequences tied to that 

fact would require a judicial act we are not 

empowered to perform. 

B. The Merits

 The government may justify the aggregate 

limits as a means of preventing corruption or the 

appearance of corruption, or as a means of 

preventing circumvention of contribution limits 

imposed to further its anticorruption interest.3

 

3

 Even after Citizens United, a number of other circuits 

continue to recognize anticorruption and anticircumvention as 

valid government interests. They likewise continue to recognize 

the government’s interest in preventing the appearance of 

corruption. See, e.g., United States v. Danielczyk, 683 F.3d 611, 

618 (4th Cir. 2012); Ognibene v. Parkes, 671 F.3d 174, 187, 195 

& n.21 (2d Cir. 2011); Wis. Right to Life State Political Action 
App-26

Buckley, 424 U.S. at 26-27, 38. The Supreme Court 

has recognized no other governmental interest 

“sufficiently important to outweigh the First 

Amendment interests implicated by contributions for 

political speech.” SpeechNow.org, 599 F.3d at 692. 

“Corruption,” though, is a narrow term of art: 

“Election officials are influenced to act contrary to 

their obligations of office by the prospect of financial 

gain to themselves or infusions of money into their 

campaigns. The hallmark of corruption is the 

financial quid pro quo: dollars for political favors.” 

Fed. Election Comm’n v. Nat’l Conservative Political 

Action Comm., 470 U.S. 480, 497 (1985). Influence 

over or access to elected officials does not amount to 

corruption. Citizens United , 130 S. Ct. at 910 

(“Democracy is premised on responsiveness.” 

(quoting McConnell, 540 U.S. at 297 (Kennedy, J., 

concurring in the judgment in part and dissenting in 

part))). 

Citizens United left unclear the 

constitutionally permissible scope of the 

government’s anticorruption interest. It both 

restricted the concept of quid-pro-quo corruption to 

bribery, see 130 S. Ct. at 908 (“The practices Buckley 

noted would be covered by bribery laws if a quid pro 

quo arrangement were proved.”), and suggested that 

there is a wheeling-and-dealing space between pure 

bribery and mere influence and access where elected 

officials are “corrupt” for acting contrary to their 

 

Comm. v. Barland, 664 F.3d 139, 153 (7th Cir. 2011); 

Thalheimer v. City of San Diego, 645 F.3d 1109, 1118, 1124-25 

(9th Cir. 2011). 
App-27

representative obligations, see id. at 911 (stating 

that there would be “cause for concern” if elected 

officials “succumb to improper influences,” 

“surrender their best judgment,” and “put 

expediency before principle” because of independent 

expenditures. Yet if anything is clear, it is that 

contributing a large amount of money does not ipso 

facto implicate the government’s anticorruption 

interest. The government’s assertion that large 

contributions “could easily exert a corrupting 

influence on the democratic system” and would 

present “the appearance of corruption that is 

‘inherent in a regime of large individual financial 

contributions’” simply sweeps too broadly. 

McCutcheon alleges that he has “deeply held 

principles regarding government and public policy,” 

believing that “the United States is slowly but surely 

losing its character as an exceptional nation that 

stands for liberty and limited government under the 

Constitution.” He wants to contribute to a number of 

candidates “who are interested in advancing the 

cause of liberty.” Supporting general principles of 

governance does not bespeak corruption; such is 

democracy. “It is in the nature of an elected 

representative to favor certain policies, and, by 

necessary corollary, to favor the voters and 

contributors who support those policies.” Citizens 

United, 130 S. Ct. at 910 (quoting McConnell, 540 

U.S. at 297 (Kennedy, J., concurring in the judgment 

in part and dissenting in part)). 
App-28

 Plaintiffs do not, however, challenge the base 

contribution limits,4 so we may assume they are 

valid expressions of the government’s anticorruption 

interest. And that being so, we cannot ignore the 

ability of aggregate limits to prevent evasion of the 

base limits. See Buckley, 424 U.S. at 38 (upholding 

the $25,000 aggregate limit as “no more than a 

corollary of the basic individual contribution 

limitation that we have found to be constitutionally 

valid”). Circumvention, after all, can be “very hard to 

trace.” Fed. Election Comm’n v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431, 462 (2001) 

(“Colorado II”); see McConnell, 540 U.S. at 165, 224 

(explaining that “[m]oney, like water, will always 

find an outlet,” and Congress has learned “the hard 

lesson of circumvention” from “the entire history of 

campaign finance regulation”). Eliminating the 

aggregate limits means an individual might, for 

example, give half-a-million dollars in a single check 

to a joint fundraising committee composing of a 

party’s presidential candidate, the party’s national 

party committee, and most of the party’s state 

committees. After the fundraiser, the committees are 

required to divvy the contributions to ensure that no 

committee receives more than its permitted share, 

11 C.F.R. §§ 102.6(a)(1), 110.3(c)(2), but because 

 

4

 We take no position on whether plaintiffs could have done so. 

See McConnell, 540 U.S. at 229 (“This Court has no power to 

adjudicate a challenge to the FECA [contribution] limits 

because challenges to the constitutionality of FECA provisions 

are subject to direct review before an appropriate en banc court 

of appeals . . . not in the three-judge District Court convened 

pursuant to BCRA § 403(a).”)). 
App-29

party committees may transfer unlimited amounts of 

money to other party committees of the same party, 

the half-a-million-dollar contribution might 

nevertheless find its way to a single committee’s 

coffers. 2 U.S.C. § 441a(a)(4); 11 C.F.R. §§ 

102.6(a)(1)(ii), 110.3(c)(1). That committee, in turn, 

might use the money for coordinated expenditures, 

which have no “significant functional difference” 

from the party’s direct candidate contributions. 

Colorado II, 533 U.S. at 460. The candidate who 

knows the coordinated expenditure funding derives 

from that single large check at the joint fundraising 

event will know precisely where to lay the wreath of 

gratitude. 

 Gratitude, of course, is not itself a 

constitutionally-cognizable form of corruption, 

Republican Nat’l Comm., 698 F. Supp. 2d at 158, and 

it may seem unlikely that so many separate entities 

would willingly serve as conduits for a single 

contributor’s interests. But it is not hard to imagine 

a situation where the parties implicitly agree to such 

a system, see Colorado II, 533 U.S. at 459 (upholding 

limits on coordinate spending as a means of 

preventing circumvention of contribution limits 

because of “informal bookkeeping” practices by 

which, among other things, “[d]onors would be told 

the money they contributed could be credited to any 

Senate candidate”), and there is no reason to think 

the quid pro quo of an exchange depends on the 

number of steps in the transaction, see McConnell, 

540 U.S. at 155 (“[T]here is no meaningful 

separation between the national party committees 

and the public officials who control them.”). The 
App-30

Supreme Court has rejected the argument that 

Congress cannot restrict coordinated spending as an 

anticircumvention measure because there are “better 

crafted safeguards” in place like the earmarking 

rules. Colorado II, 533 U.S. at 462. We follow the 

Court’s lead and conceive of the contribution limits 

as a coherent system rather than merely a collection 

of individual limits stacking prophylaxis upon 

prophylaxis. 

 Given our conclusion that the aggregate limits 

are justified, we reject Plaintiffs’ arguments that the 

limits are unconstitutionally low and 

unconstitutionally overbroad. It is not the judicial 

role to parse legislative judgment about what limits 

to impose. See Randall v. Sorrell, 548 U.S. 230, 248 

(2006) (plurality) (“We 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....”); Colorado II, 533 U.S. 

at 446 (“[T]he dollar amount of the limit need not be 

‘fine tun[ed].’” (quoting Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377, 387-88 (2000))); Buckley, 424 at 

30 (“[I]f it is satisfied that some limit on 

contributions is necessary, a court has no scalpel to 

probe, whether, say, a $2,000 ceiling might not serve 

as well as $1,000.” (internal quotation marks 

omitted)). Only if there are “danger signs” that the 

limits are not closely drawn will we examine the 

record to review the statute’s tailoring. Randall, 548 

U.S. at 249; see Buckley, 424 U.S. at 30 (“Such 

distinctions in degree become significant only when 

they can be said to amount to differences in kind.”). 
App-31

We see no danger signs here. Plaintiffs’ argument 

depends on using “simple arithmetic” to translate 

the Vermont contribution limits invalidated in 

Randall to imaginary biennial limits on 

contributions to party committees and candidates. 

They argue that the limit on contributions to state 

party committees invalidated by Randall is 

equivalent to a biennial contribution limit of 

$198,389 to national party committees, which they 

explain is about $14,000 more than the total amount 

an individual could biennially contribution to the 

three committees—an amount an individual still 

cannot contribute because of the aggregate limits. 

They likewise argue that if an individual wanted to 

contribute equally to “one candidate of his choice in 

all 468 federal races” in 2006, he would be limited to 

contributing $85.29 per candidate for the entire 

election cycle, an amount “far below the $200 limit 

held too low in Randall.” Even granting that 

Plaintiffs’ methodology and results are correct,5“the 

 

5

 Their premise that the Randall Court struck down a “$400 

limit on contributions an individual may may make, over a twoyear period, to a state party committee” distorts the Court’s 

description that the statute in question “imposes a limit of 

$2,000 upon the amount any individual can give to a political 

party during a 2-year general election cycle.” 548 U.S. at 239. 

In any event, to compare the amount of money required to 

reach the national population to the amount needed to reach 

just the citizens of Vermont is not a matter of a mere 

multiplier. If direct mail were the only means, such a 

multiplier might work. But to take a simple example, building 

a website to reach a national audience is not any more 

expensive than building one to reach citizens of a single state. 

As a result, Plaintiffs are wrong to create a simple ratio of 

money needed to reach Vermonters over money needed to reach 

all Americans. 
App-32

dictates of the First Amendment are not mere 

functions of the Consumer Price Index.” Shrink Mo. 

Gov’t PAC, 528 U.S. at 397. The effect of the 

aggregate limits on a challenger’s ability to wage an 

effective campaign is limited because the aggregate 

limits do not apply to nonindividuals. See Randall, 

548 U.S. at 236, 249 (invalidating contribution limit 

that imposed a burden on First Amendment rights 

“disproportionately severe” to the government’s 

legitimate interests because the limits “harm[ed] the 

electoral process by preventing challengers from 

mounting effective campaigns against incumbent 

officeholders, thereby reducing democratic 

accountability”). Buckley, 424 U.S. at 21 (suggesting 

the contribution limits would be problematic if they 

“prevented candidates and political committees from 

amassing the resources necessary for effective 

advocacy”). And in any event, individuals remain 

able to volunteer, join political associations, and 

engage in independent expenditures. See Wagner v. 

Fed. Election Comm’n, Civ. Action No. 11-

1841(JEB), 2012 WL 1255145, at *9 (D.D.C. Apr. 16, 

2012) (“There is even less need for the Court to 

interfere with legislative judgments where the 

persons affected by the ban have other meaningful 

avenues for political association and expression.”). 

 

 Plaintiffs’ overbreadth challenge consists of 

the conclusory assertions that the aggregate limits 

substantially inhibit protected speech and 

association “not only in an absolute sense, but also 

relative to the scope of the law’s plainly legitimate 

applications,” and that “there is no ‘scope of...plainly 

legitimate applications’” since neither political party 
App-33

proliferation nor movement of “massive” amounts of 

money through party committees or PACs to 

candidates is now possible. The Buckley Court 

rejected challenges that the contribution limits are 

overbroad because most contributors are not seeking 

a quo for their quid and the base contribution limit is 

“unrealistically low.” 424 U.S. at 30. Aside from 

these two claims, which we join the Buckley Court in 

rejecting, Plaintiffs do not explain how the aggregate 

limits potentially regulate both protected and 

unprotected conduct. See Virginia v. Hicks, 539 U.S. 

113, 119 (2003) (tracing the overbreadth doctrine to 

“concern that the threat of enforcement of an 

overbroad law may deter or ‘chill’ constitutionally 

protected speech”); Hill v. Colorado, 530 U.S. 703, 

731-32 (2000) (emphasizing that the overbreadth 

doctrine permits litigants to challenge a statute 

because of a “judicial prediction or assumption that 

the statute’s very existence may cause others not 

before the court to refrain from constitutionally 

protected speech or expression”); Broadrick v. 

Oklahoma, 413 U.S. 601, 610-12 (1973) (explaining 

the overbreadth doctrine as a tool for circumventing 

an otherwise prohibitory standing doctrine). 

Plaintiffs’ overbreadth argument is essentially a 

severability claim, but because we conclude that 

nothing needs to be severed, this argument fails. 

 Plaintiffs raise the troubling possibility that 

Citizens United undermined the entire contribution 

limits scheme, but whether that case will ultimately 

spur a new evaluation of Buckley is a question for 

the Supreme Court, not us. 
App-34

III. Conclusion 

 

 For the foregoing reasons, the Court will issue 

a contemporaneous Order denying Plaintiffs’ Motion 

for a Preliminary Injunction and granting the FEC’s 

motion to dismiss. 

 /s/ JANICE ROGERS BROWN

 United States Circuit Judge 

 /s/ ROBERT L. WILKINS

 United States District Judge 

 /s/ JAMES E. BOASBERG

 United States District Judge 

 

Date: September 28, 2012
App-35

ORDER AND FINAL JUDGMENT

 For the reasons set forth in the Memorandum 

Opinion, it is this 28th day of September, 2012, 

hereby 

ORDERED that the Defendant Federal Election 

Commission’s motion to dismiss is Granted; it is 

further 

ORDERED that the Plaintiff’s motion for a 

preliminary injunction is DISMISSED AS MOOT; and it 

is further 

ORDERED that final judgment be entered for 

the defendant. 

SO ORDERED. 

 

 /s/ JANICE ROGERS BROWN

 United States Circuit Judge 

 /s/ ROBERT L. WILKINS

 United States District Judge 

 /s/ JAMES E. BOASBERG

 United States District Judge 

 
App-36

APPENDIX E 

 

U.S. Const. amend. I 

 

Congress shall make no law respecting an 

establishment of religion, or prohibiting the free 

exercise thereof; or abridging the freedom of speech, 

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

assemble, and to petition the Government for a 

redress of grievances. 

2 U.S.C. §441a. Limitations on contributions and 

expenditures 

 

(a) Dollar limits on contributions 

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

and section 441a–1 of this title, no person shall make 

contributions— 

 

 (A) to any candidate and his authorized 

 political committees with respect to any 

 election for Federal office which, in the 

 aggregate, exceed $2,000; 

 (B) to the political committees established and 

 maintained by a national political party,

 which are not the authorized political 

 committees of any candidate, in any calendar 

 year which, in the aggregate, exceed $25,000; 

 (C) to any other political committee (other 

 than a committee described in subparagraph 
App-37

 (D)) in any calendar year which, in the 

 aggregate, exceed $5,000; or 

 (D) to a political committee established and 

 maintained by a State committee of a political 

 party in any calendar year which, in the 

 aggregate, exceed $10,000. 

[...] 

(3) During the period which begins on January 1 of 

an odd-numbered year and ends on December 31 of 

the next even-numbered year, no individual may 

make contributions aggregating more than— 

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

 candidates and the authorized committees of 

 candidates; 

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

 contributions, of which not more than $37,500 

 may be attributable to contributions to 

 political committees which are not political 

 committees of national political parties. 

11 C.F.R. § 110.5(b) 

Aggregate biennial contribution limitation for 

individuals (2 U.S.C. 441a(a)(3)). 

(1) In the two-year period beginning on January 1 of 

an odd-numbered year and ending on December 31 

of the next even-numbered year, no individual shall 
App-38

make contributions aggregating more than $95,000, 

including no more than: 

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

 candidates and the authorized committees of 

 candidates; and 

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

 contributions, of which not more than $37,500 

 may be attributable to contributions to 

 political committees that are not political 

 committees of any national political parties. 

(2) [Reserved] 

(3) The contribution limitations in paragraph (b)(1) 

of this section shall be increased by the percent 

difference in the price index in accordance with 11 

CFR 110.17. The increased contribution limitations 

shall be in effect for the two calendar years starting 

on January 1 of the year in which the contribution 

limitations are increased. 

(4) In every odd-numbered year, the Commission will 

publish in the Federal Register the amount of the 

contribution limitations in effect and place such 

information on the Commission's Web site. 

 
App-39

APPENDIX F 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

Three-Judge Court 

Requested 

 

Oral Argument 

Requested 

 

VERIFIED COMPLAINT FOR DECLARATORY 

RELIEF 

 

I. NATURE OF ACTION 

1. Plaintiff challenges the limit on total contributions 

to candidate committees (“sub-aggregate limit”) 

under the Bipartisan Campaign Reform Act. Pub. L. 

107-155, 116 Stat. 93 (2002) (“BCRA”); 2 U.S.C. § 

441a(a)(3)(A) (indexed for inflation per 11 C.F.R. § 

110.5(b)(4) at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 

2. Buckley v. Valeo, 424 U.S. 1 (1976), upheld the 

aggregate contribution limits of BCRA’s predecessor, 

the Federal Election Campaign Act (“FECA”). 

Buckley’s holding stemmed from concern that 

contributors could circumvent limits on 
App-40

contributions to individual candidates by 

contributing to parties and other committees. 

Buckley, 424 U.S. at 38. 

3. Plaintiff does not wish or intend to give to parties 

or PACs, thus negating the Buckley rationale. 

Therefore, this challenge to the sub-aggregate limit 

on total contributions to candidates is one of first 

impression. 

4. Moreover, Buckley did not consider the subaggregate limits that exist under BCRA because 

those limits did not exist in 1976. Rather, Buckley 

considered a statute that contained only one, overall 

annual aggregate limit on all contributions to 

candidate committees, party committees and 

political committees.. Pub. L. 93-443, Sec. 101(3) 

(1974) (“Federal Election Campaign Act 

Amendments of 1974”); see also Pub. L. 92-225, Sec. 

205 (definition of contributions for Federal Election 

Campaign Act of 1971). 

5. Plaintiff Virginia James, a private individual, has 

given to political candidates in the past and plans to 

continue doing so. This biennium, she wishes to 

contribute more than the current sub-aggregate 

limit of $46,200 to various political candidates, but 

does not wish to exceed the $2,500 limit on 

contributions to each individual candidate. 2 U.S.C. 

§ 441a(a)(1)(A) (indexed for inflation per 11 C.F.R. § 

110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 

Nor does she wish to exceed the overall biennial 

limit of $117,000 on all contributions to candidates, 

PACs, and parties. 2 U.S.C. § 441a(a)(3)(A)-(B) 
App-41

(indexed for inflation per 11 C.F.R. § 110.5(b)(3)-(4) 

at 76 Fed. Reg. 8368 (Feb. 14, 2011)). Rather, she 

wishes to take money that she may legally 

contribute to PACs and parties, and instead 

contribute it directly to candidates she wishes to 

support. 

II. JURISDICTION AND VENUE

6. This Court has jurisdiction because this action 

arises under the First Amendment to the United 

States Constitution and a federal statute. 28 U.S.C. 

§ 1331 (2012). 

7. This Court has jurisdiction under sections 

403(a)(1) and (d)(2) of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”). Pub. L. No. 107-155 

(2002), 116 Stat. 81, 113-14. See 28 U.S.C. § 2284; 

LCvR 9.1. 

8. This court has jurisdiction as to the 

constitutionality of FECA and its subsequent 

amendments under 2 U.S.C. § 437h (2012). 

9. This Court has jurisdiction under the Declaratory 

Judgment Act. 28 U.S.C. §§ 2201and 2202 (2012). 

10. Venue in this Court is proper under 28 U.S.C. §§ 

1391(e) (2012). 

III. PARTIES

11. Plaintiff Virginia James is an investor and 

resident of Lambertville, New Jersey, who has given 
App-42

to political candidates and political action 

committees (“PACs”) in the past, and plans to 

continue contributing to federal candidate 

committees. 

12. Defendant Federal Election Commission (“FEC”) 

is the federal government agency charged with 

enforcing BCRA. 

IV. FACTS

13. Ms. James wishes to exercise her First 

Amendment right to associate by contributing 

directly to various candidates for federal office. 

14. This biennium, Ms. James has contributed to 

individual candidate committees, political action 

committees (“PACs”), and independent expenditure 

only committees. 

15. During this biennium, Ms. James has 

contributed at least $27,000 to candidate 

committees. Ms. James made these contributions in 

accordance with the $2,500 limit on contributions to 

individual candidates under 2 U.S.C. § 441a(a)(1)(A) 

(indexed for inflation per 11 C.F.R. § 110.5(b)(3)-(4) 

at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 

16. Ms. James’s contributions to candidates during 

this biennium do not exceed $46,200. 

17. During this biennium, Ms. James has 

contributed $5,000 to PACs, an amount well below 

the $46,200 limit on contributions to PACs under 2 
App-43

U.S.C. § 441a(a)(3)(B) (indexed for inflation per 11 

C.F.R. § 110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 

2011)). 

18. Ms. James does not wish to make any further 

contributions to PACs this biennium, and stipulates 

that she will not do so. 

19. Ms. James does not wish to make any 

contributions to political parties this biennium, and 

stipulates that she will not do so. 

20. This biennium, Ms. James wishes to contribute 

up to the $117,000 aggregate biennial limit under 2 

U.S.C. § 441a(a)(3) (indexed for inflation per 11 

C.F.R. § 110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 

2011)). 

21. The only contributions Ms. James wishes to 

make during the balance of this biennium are direct 

contributions of up to $2,500 to individual candidate 

committees. 

22. Ms. James wishes to contribute more than the 

sub-aggregate biennial limit of $46,200 on total 

candidate contributions. 

23. Ms. James does not seek to contribute in excess 

of the current aggregate biennial contribution limit 

of $117,000. 
App-44

V. CAUSES OF ACTION

COUNT 1: 

The Sub-Aggregate Limit on Contributions to 

Individual Candidates is Facially Unconstitutional. 

24. Plaintiff realleges and incorporates by reference 

paragraphs 1 – 23. 

25. Contribution limits implicate the First 

Amendment by limiting the freedoms of political 

association and speech. Buckley, 424 U.S. at 15; 

Randall v. Sorrell, 548 U.S. 230, 246-247 (2006). 

26. Contribution limits are permissible in the 

interest of preventing actual or apparent corruption. 

Buckley, 424 U.S. at 28. 

27. But, “[i]n drawing that line, the First 

Amendment requires us to err on the side of 

protecting political speech rather than suppressing 

it,” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457 

(2007) (“WRTL II”), because “[t]he First Amendment 

has its fullest and most urgent application to speech 

uttered during a campaign for political office.” 

Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) 

(internal citations omitted). 

28. In Buckley, the Supreme Court upheld FECA’s 

contribution limits for both individual candidates 

and in the aggregate, based on different rationales. 
App-45

29. The Buckley Court upheld contribution limits for 

individual candidates under the rationale that such 

limits were necessary to prevent actual or apparent 

corruption. Buckley, 424 U.S. at 26. 

30. The Buckley Court upheld limits on aggregate 

contributions: 

to prevent evasion of the [individual 

candidate] contribution limitation by a 

person who might otherwise contribute 

massive amounts of money to a 

particular candidate through the use of 

unearmarked contributions to political 

committees likely to contribute to that 

candidate, or huge contributions to the 

candidate's political party. 

Buckley, 424 U.S. at 38, cf. McConnell v. FEC, 540 

U.S. 93, 152 n. 48 (2003). 

31. BCRA also eliminated unlimited contributions to 

political parties for party-building activities; socalled “soft money.” See BCRA, § 323, 2 U.S.C. § 

441i; McConnell, 540 U.S. at 288 (Kennedy, J. 

concurring in part and dissenting in part); Citizens 

United, 130 S. Ct. at 910. 

32. In McConnell, the U.S. Supreme Court did not 

discuss BCRA’s sub-aggregate biennial limit on 

contributions to individual candidates—although the 

issue was properly pled before the Court. However, 

the Court did uphold FECA’s annual, total aggregate 

contribution limit. McConnell, 540 U.S. at 152, 167 
App-46

(2003). The Court did so on identical grounds to 

those in Buckley. Id. 

33. The sub-aggregate limit on candidate 

contributions prevents contributors from giving to 

more than a limited number of races in any one 

electoral cycle, despite the fact that an individual 

may wish to associate with multiple candidates in 

multiple races—all at a level Congress has identified 

as non-corrupting in setting other contribution 

limits. 

34. Thus, there is no anti-corruption or anticircumvention rationale that remains for individual 

contributors wishing to contribute solely to 

candidates. The sub-aggregate limit on individual 

candidate contributions unnecessarily chills speech 

and infringes upon associational rights through a 

means that is not appropriately tailored. Thus, that 

limit is unconstitutionally overbroad. 

35. Plaintiff realleges and incorporates by reference 

paragraphs 1 – 34. 

COUNT 2: 

The Sub-Aggregate Limit on Contributions to 

Individual Candidates is Unconstitutional as Applied 

to Plaintiff. 

36. McConnell did not address the factual landscape 

present here. Plaintiff pledges strict adherence to the 

individual candidate contribution limit and the 

overall biennial contribution limit. However, she 

wishes to contribute more than $46,200 of the 
App-47

biennial limit’s $117,000 directly to candidate 

committees. In light of the foregoing, this is a case of 

first impression. 

37. The sub-aggregate limit on candidate 

contributions prevents Ms. James from giving to 

more than a handful of races in any one electoral 

cycle, despite the fact that she wishes to associate 

with multiple candidates in multiple races—all at a 

level Congress has identified as non-corrupting in 

setting other contribution limits. 

38. There is no anti-corruption or anti-circumvention 

rationale that remains relevant given Ms. James’s 

wish to emphasize candidate committees in assigning 

her contributions. The sub-aggregate limit on 

individual candidate contributions unnecessarily 

chills Ms. James’s speech and infringes upon her 

associational rights through a means that is not 

appropriately tailored. Thus, that limit is 

unconstitutionally overbroad. 

PRAYER FOR RELIEF 

 

WHEREFORE, Plaintiff prays for the 

following relief: 

A. A declaration that the aggregate limit on 

contributions to individual candidates at 2 

U.S.C. §441a(a)(3)(A) is unconstitutional on its 

face. 

B. A declaration that, in light of Ms. James’ right 

to association and the government’s mooted 
App-48

interest in the anti-circumvention and 

corruption rationales, the sub-aggregate limit 

on contributions to individual candidates at 2 

U.S.C. §441a(a)(3)(A) is unconstitutional as 

applied to Ms. James. 

C. An injunction barring enforcement of 2 USC 

§441a(a)(3)(A). 

D. Costs and Attorneys’ Fees. 

E. Such equitable or other relief as this Court 

may consider just and appropriate. 

Respectfully submitted this 31st day of August, 2012. 

 /s/Allen Dickerson

 Allen Dickerson (D.C. Bar No. 1003781) 

 Center for Competitive Politics 

 124 S. West Street, Suite 201 

 Alexandria, Virginia 22314 

 Phone: 703.894.6800 

 Facsimilie: 703.894.6811 

 adickerson@campaignfreedom.org 

 

 Counsel for Plaintiff

 
App-49

VERIFICATION 

STATE OF MAINE ) 

 ) ss. 

COUNTY OF HANCOCK ) 

I, Virginia James, being first duly sworn, state 

under oath that I have read the foregoing VERIFIED 

COMPLAINT, and that the statements contained 

therein are true and correct to the best of my 

knowledge, information, and belief. 

 /s/ Virginia James

Subscribed and sworn before me this 30th day 

of August, 2012. 

/s/ Diane M. Willey-Ward

Notary Public 

My Commission Expires: [STAMP] 

 DIANE M. WILLY-WARD 

 Notary Public Maine 

 My Commission Expires 

 January 15, 2019 

 
App-50

CERTIFICATE OF SERVICE 

I hereby certify that on the 31st day of 

August, 2012, the foregoing document was served on 

the following, via first class mail: 

Anthony Herman, 

General Counsel 

Federal Election 

Commission 

999 E Street, N.W. 

Washington, D.C. 20436 

Phone: 202.694.1650 

Facsimile: 202.219.0260 

Email: aherman@fec.gov 

Counsel for Defendant, 

FEC 

Eric H. Holder, U.S. 

Attorney General 

U.S. Department of 

Justice 

950 Pennsylvania Ave. 

NW 

Washington, DC 20530 

Civil Process Clerk 

U.S. Attorney's Office 

501 Third Street, NW 

Washington, DC 20530 

Clerk of the House of 

Representatives 

U.S. House of 

Representatives 

U.S. Capitol, Room H154 

Washington, DC 20515 

Secretary of the Senate 

United States Senate 

Washington, DC 20510-

6601 

 /s/ Allen Dickerson

 Allen Dickerson 
App-51

APPENDIX G 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

Three-Judge Court 

Requested 

 

Oral Argument 

Requested 

 

MOTION FOR PRELIMINARY INJUNCTION 

 

 Plaintiff Virginia James, by and through 

undersigned counsel, moves this Court for a 

preliminary injunction enjoining the Federal 

Election Commission (“the Commission”), from 

enforcing the aggregate limit on contributions to 

candidate committees (“sub-aggregate limit”) under 

the Bipartisan Campaign Reform Act. Pub. L. 107-

155, 116 Stat. 93 (2002) (“BCRA”); 2 U.S.C. § 

441a(a)(3)(A) (indexed for inflation per 11 C.F.R. § 

110.5(b)(4) at 76 Fed. Reg. 8368 (Feb. 14, 2011)). As 

set forth in the accompanying Memorandum of Law 

in support of this Motion, if Ms. James is required to 

abide by the sub-aggregate limit, she will be denied 

the full expression of her First Amendment rights to 

association and speech. Absent an injunction from 
App-52

this Court, Ms. James reasonably fears that the 

Commission will proceed with the enforcement of the 

sub-aggregate limit, burdening her First 

Amendment rights. 

 The sub-aggregate limit would be 

constitutional only if the limit is shown to be 

necessary to prevent actual or apparent corruption, 

or to prevent contributors from utilizing PACs or 

political parties as a means of circumventing the 

limits on contributions to individual candidate 

committees. However, for reasons enumerated in the 

accompanying Memorandum of Law in support of 

this Motion, neither the anti-corruption nor the anticircumvention rationales exists as regards to the 

sub-aggregate limit, either facially or as applied to 

Ms. James. Thus, the Commission, the agency 

charged with enforcing the Federal campaign 

finance laws, may not enforce the sub-aggregate 

limit against Ms. James. 

 Ms. James is likely to succeed on the merits of 

her constitutional claims. Plaintiff would be 

irreparably harmed if the Commission enforces the 

sub-aggregate limit against her, thereby placing an 

unconstitutional burden on Plaintiff’s First 

Amendment rights. Moreover, neither the public 

interest nor the Commission’s interest is contrary to 

the entering of an injunction. Consequently, Ms. 

James meets the standard for the issuance of a 

preliminary injunction, and requests that this Court 

enter the same. 
App-53

 Pursuant to LCvR 7(m) of this Court. Plaintiff 

has conferred with opposing counsel by telephone, 

and Defendant opposes this motion. 

 Respectfully submitted this 5th day of 

September, 2012. 

 /s/Allen Dickerson

 Allen Dickerson (D.C. Bar No. 1003781) 

 Center for Competitive Politics 

 124 S. West Street, Suite 201 

 Alexandria, Virginia 22314 

 Phone: 703.894.6800 

 Facsimilie: 703.894.6811 

 adickerson@campaignfreedom.org 

 Counsel for Plaintiff 

 
App-54

CERTIFICATE OF SERVICE 

I hereby certify that on the 5th day of 

September, 2012, I caused the foregoing document to 

be served on the following, via electronic and First 

Class mail: 

David Kolker 

Associate General Counsel 

Federal Election Commission 

999 E Street, NW 

Washington. D.C. 20436 

Phone: 202.694.1650 

Facsimile: 202.219.0260 

Email: dkolker@fec.gov 

Counsel for Defendant, FEC 

 /s/ Allen Dickerson

 Allen Dickerson 

 
App-55

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

Three-Judge Court 

Requested 

 

Oral Argument 

Requested 

 

 

MEMORANDUM OF LAW IN SUPPORT OF 

MOTION FOR PRELIMINARY INJUNCTION 

 

 

 

 Allen Dickerson, D.C. Bar No. 1003781 

 Center for Competitive Politics 

 124 West Street South, Suite 201 

 Alexandria, Virginia 22314 

 Phone: 703.894.6800 

 Facsimile: 703.894.6811 

 adickerson@campaignfreedom.org 

 Counsel for Plaintiff 
App-56

[TABLE OF CONTENTS AND TABLE OF AUTHORITIES 

OMITTED HERE DUE TO INCONSISTENT PAGINATION 

BETWEEN ORIGINAL AND THIS APPENDIX] 

Introduction 

Plaintiff Virginia James challenges the 

individual biennial limits on contributions to 

candidate committees at 2 U.S.C. 441a(a)(3)(A) 

(“sub-aggregate limit”) as violative of her First 

Amendment right to free association. This challenge 

is based on the changed state of the law since the 

landmark campaign finance case Buckley v. Valeo.

1

Facts 

Virginia James wishes to exercise her First 

Amendment right to associate by contributing 

directly to candidates for federal office. She wishes to 

contribute up to the aggregate limit of $117,000 over 

a two-year period.2 Ms. James is not challenging this 

aggregate limit, and stipulates that her relevant 

biennial contributions will not, in the aggregate, 

exceed $117,000. 

In the past year, Ms. James gave $5,000 to the 

Club for Growth, a political action committee or 

“PAC.”3

 She also contributed at least $27,000 to 

 

1 424 U.S. 1 (1976). 

2 2 U.S.C. § 441a(a)(3). 

3 Ms. James also gave $1,000,000 to independent-expenditureonly political action committees, or “SuperPACs,” per the 

decision of the D.C. Circuit in SpeechNow.org v. FEC, 599 F.3d 

686 (DC Cir. 2010). However, contributions to independent-
App-57

individual candidates she supports, most of which 

was for primary election contests.4 She made all of 

these contributions in accordance with the $2,500 

limit on contributions to individual candidates.5

Going forward, Ms. James stipulates that she will 

not make any future contributions to PACs, and will 

not make any contributions to political parties. 

The only future participation Ms. James 

wishes to have in the 2012 election cycle is via direct 

contributions of up to $2,500 to individual 

candidates, consistent with the individual candidate 

contribution limit.6 She wishes to do so up to the 

aggregate contribution cap of $117,000.7

 But BCRA 

requires that she divide that $117,000 among 

parties, PACs, and candidates, instead of allowing 

her to choose which candidates to directly support. 

Consequently, Ms. James is subject to an aggregate 

limit of $46,200 on her monetary participation in 

this election.8

 Other individuals, who would also like 

to associate with PACs and parties – in many cases 

because those entities may in turn contribute to 

 

expenditure-only committees are not subject to contribution 

limits, and consequently not relevant to this case. 4 See Federal Election Commission Data, Individual 

Contributions for Virginia James, Jan. 1 2011, to Aug. 30 2012 

available at http://www.fec.gov/finance/disclosure/advindsea. 

shtml last accessed Aug. 30, 2012. 

5 2 U.S.C. § 441a(a)(1)(A) (indexed for inflation per 11 C.F.R. § 

110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 6

Id. 7

 2 U.S.C. § 441a(a)(3)(A)-(B) (indexed for inflation per 11 

C.F.R. § 110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 8

 2 U.S.C. § 441a(a)(3)(A) (indexed for inflation per 11 C.F.R. § 

110.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 
App-58

candidates – may contribute $70,800 more than Ms. 

James. 

Plaintiff wishes merely to exercise her 

associational right to contribute during this election 

cycle at the same level as those who choose to 

contribute to parties and PACs in addition to 

candidates. Ms. James asks for a ruling allowing her 

to make contributions to the extent allowed by 

Congress, but to do so by directly supporting 

candidates, instead of being required to associate 

with PACs and parties. 

Argument 

I. Standard for preliminary injunction 

 To obtain a preliminary injunction, the 

moving party must show: (1) substantial likelihood 

of success on the merits; (2) that it would suffer 

irreparable injury if the injunction were not granted; 

(3) that an injunction would not substantially injure 

other interested parties; and (4) that the public 

interest would be furthered by the injunction.9

 This 

Court applies this four-factor test on a sliding scale, 

where “a particularly strong showing in one area can 

compensate for weakness in another.”10 Thus, "[i]f 

the showing in one area is particularly strong, an 

 

9

Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. 

Supp. 2d 1, 11-12 (D.D.C. 2009) (citing Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 

2006)). 

10 England, 454 F.3d at 297. 
App-59

injunction may issue even if the showings in other 

areas are rather weak."11

II. Ms. James will likely succeed on the 

merits. 

 When determining whether a preliminary 

injunction is appropriate, “the most critical” factor is 

the plaintiff’s likelihood of success on the merits.12

Virginia James wishes to associate with the 

candidates she supports by making contributions to 

their campaigns at a level (in the aggregate) above 

$46,200 but below $117,000. This Court has been 

asked to determine whether she may 

constitutionally be prohibited from doing so. 

Because candidate contributions are protected by the 

First Amendment, and because statutes limiting 

such contributions must survive exacting scrutiny, 

the challenged statute is likely unconstitutional. 

A. Legal landscape and historical 

background. 

Congress has established a biennial limit on 

the total value of political contributions an 

individual may make in a two-year period.13 The 

current overall biennial limit is $117,000. This limit 

is subject to “sub-aggregate” limits on (1) the 

aggregate amount an individual may contribute to 

 

11 Brady Campaign, id. (quoting CityFed Fin. Corp. v. Office of 

Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)). 12 Carey v. FEC, 791 F. Supp. 2d 121, 128 (D.D.C. 2011). 13 2 U.S.C. § 441a(a)(3). 
App-60

individual candidates in a two-year period,14 (2) the 

aggregate amount an individual may contribute to 

political committees that are not political 

committees of national political parties in a two-year 

period,15 and (3) the aggregate amount of “any other 

contributions” an individual may make in a two-year 

period.16 In addition, Congress has also established 

“categorical limits” on the amount an individual may 

contribute to each of three categories of political 

actors during a given election or calendar year: (1) 

individual candidates, (2) national party committees, 

and (3) other political action committees.17 Under 

these statutes and their implementing regulations, 

Ms. James may contribute only $46,200 to all 

candidates every two years.18

Ms. James is not challenging 2 U.S.C. § 

441a(a)(3)’s aggregate limit as a whole. That is, she 

does not ask to contribute more than $117,000 to all 

regulated entities in toto. Nor is she challenging 2 

U.S.C. § 441a(a)(1)’s categorical limit on 

contributions to each individual candidate. That is, 

she will not give more than $2,500 to any single 

candidate committee in either the primary or 

general election periods. 

 

14 2 U.S.C. § 441a(a)(3)(A). 

15 2 U.S.C. § 441a(a)(3)(B). 

16 2 U.S.C. § 441a(a)(3)(B). 

17 2 U.S.C. § 441a(a)(1) (with current price index adjustments 

reflected at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 

18 2 U.S.C. § 441a(a)(3) (with current price index adjustments 

reflected at 76 Fed. Reg. 8368 (Feb. 14, 2011)). 
App-61

Instead, she challenges 2 U.S.C. § 

441a(a)(3)(A)’s sub-aggregate candidate contribution 

limit as an unconstitutional burden on her 

associational right to contribute to the individual 

candidates she supports. Ms. James limits her 

claims to 2 U.S.C. § 441a(a)(3)(A) and does not 

challenge any other element of campaign finance 

law. 

This Court is asked whether Ms. James may 

constitutionally be prohibited from contributing 

more than $46,200 to candidate committees, but less 

than $117,000, during this biennium. The question 

posed, then, is whether Congress may place an 

aggregate cap on contributions to candidate 

committees when the additional funds used for those 

contributions could, instead, have been contributed 

to political committees or political parties under 

existing law. 

Congress may act to prevent corruption or the 

appearance of corruption, including by creating 

reasonable limits on political contributions.19 But in 

doing so, its rules must actually address corruption 

or its appearance, and must be “closely drawn” to 

accomplish that end.20 Because Congress failed to 

appropriately tailor its statutory means to its 

legitimate legislative ends, the sublimit on aggregate 

contributions to candidate committees is 

unconstitutional. 

 

19 Buckley v. Valeo, 424 U.S. 1, 38 (1976). 20 See, e.g., Randall v. Sorrell, 548 U.S. 230, 249 (2006). 
App-62

B. Buckley v. Valeo and McConnell v. FEC 

 Plaintiff is aware that the Supreme Court 

upheld FECA’s aggregate contribution limit against 

a constitutional challenge in Buckley,

21 and left that 

holding intact in McConnell v. FEC.

22 But the 

constitutional challenge Ms. James brings is one of 

first impression, since neither Buckley nor 

McConnell addressed the constitutionality of BCRA’s 

sub-aggregate limit on contributions to individual 

candidates under BCRA. 

 The Federal Election Campaign Act—the 

statute at issue in Buckley—provided for “an overall 

$25,00023 limitation on total contributions by an 

individual during any calendar year,”24 and 

stipulated that "no person shall make contributions 

to any candidate with respect to any election for 

Federal office which, in the aggregate, exceed 

$1,000."25

 In analyzing FECA, the Buckley Court 

upheld the $1,000 limit on individual candidate 

committee (or “hard money”) contributions in the 

interest of preventing donors from obtaining undue 

influence over any particular candidate.26 The Court 

 

21 Buckley, 424 U.S. at 38. 22 McConnell v. FEC, 540 U.S. 93 (2003). 23 Equivalent to roughly $116,000 today. CPI Inflation 

Calculator, Bureau of Labor Statistics, 

http://www.bls.gov/data/inflation_calculator.htm. 

24 Buckley, 424 U.S. at 38 (citing Federal Election Campaign 

Act, Pub.L. No. 92-225, 86 Stat. 3 (1972) (“FECA”) §608(b)(3)). 25 Id. at 23 (citing FECA § 608(b)). 26 Id. at 29. (“We find that, under the rigorous standard of 

review established by our prior decisions, the weighty interests 

served by restricting the size of financial contributions to 
App-63

also upheld the $25,000 aggregate limit, in order to 

prevent donors from circumventing the limits on 

candidate contributions by making large 

contributions to political parties and other 

committees, which would then funnel those funds, 

without formal earmarking, to individual 

candidates, thereby circumventing the $1,000 hard 

money limit.27 Thus, the candidate contribution limit 

was upheld under an anti-corruption rationale, and 

the aggregate contribution limit was upheld under 

an anti-circumvention rationale. 

 As the Court put it: 

“[t]he overall $25,000 ceiling does 

impose an ultimate restriction upon the 

number of candidates and committees 

with which an individual may associate 

himself by means of financial support. 

But this quite modest restraint upon 

protected political activity serves to 

prevent evasion of the $ 1,000 

contribution limitation by a person who 

might otherwise contribute massive 

amounts of money to a particular 

 

political candidates are sufficient to justify the limited effect 

upon First Amendment freedoms caused by the $1,000 

contribution ceiling.”) 

27 Id. at 38. Note that actually earmarking contributions to a 

party to be used for particular candidate races would be treated 

by the law as a direct contribution to the candidate, thus 

triggering the cap on contributions to individual candidates. 

What concerned the Court was that donors might give with an 

informal understanding that their contributions to the party 

would be used for particular candidates. Id. 
App-64

candidate through the use of 

unearmarked contributions to political 

committees likely to contribute to that 

candidate, or huge contributions to the 

candidate's political party. The limited, 

additional restriction on associational 

freedom imposed by the overall ceiling 

is thus no more than a corollary of the 

basic individual contribution limitation 

that we have found to be 

constitutionally valid.”28 

Thus, to prevent circumvention of the $1,000 per 

candidate limit,29 Buckley upheld FECA’s aggregate 

limit. 

 When BCRA modified FECA, it established 

sub-aggregate limits on each of three contribution 

categories: (1) total contributions to candidates, (2) 

total contributions to parties, and (3) total 

contributions to PACs. These limits together 

comprised an aggregate cap on total contributions to 

candidates, parties, and PACs.30 After BCRA 

entered into force, the Supreme Court again 

considered the constitutionality of aggregate 

contribution limits in McConnell v. FEC.

31

McConnell differed from Buckley because 

BCRA had outlawed the type of ‘soft money’ 

 

28 Buckley, 424 U.S. at 38 (emphasis added). 29 This amount is akin to BCRA’s current inflation-adjusted 

individual candidate contribution ceiling of $2,500. 

30 2 U.S.C. § 441a(a)(3). 

31 McConnell v. FEC, 540 U.S. 93 (2003). 
App-65

contributions with which Buckley was so 

concerned,32 and because the sub-aggregate limits 

had been added to the applicable law. But in 

evaluating the constitutionality of BCRA, the 

McConnell Court summarily upheld BCRA’s 

aggregate and sub-aggregate contribution limits – 

without adding to Buckley’s anti-circumvention 

analysis. The Court merely noted, “[c]onsiderations 

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.”33

Thus, the Court upheld the new sub-aggregate 

limit on candidate contributions without finding an 

anti-corruption or anti-circumvention rationale. This 

is logical as applied to those entities that pose a risk 

of circumvention: parties and PACs. But it is 

irrational as applied to candidate committees, and 

the Court did not discuss that limit at all. 

 Since the McConnell Court did not consider 

the sub-aggregate limit challenge here, this 

challenge is a case of first impression. 

 The Supreme Court has been clear that an 

aggregate contribution limit is justified to prevent 

circumvention of an individual candidate 

 

32 McConnell, 540 U.S. at 133-134 (2003) (citing 2 U.S.C. § 

441i(a), (b), (d)-(f)). 

33 Id. at 137-138. 
App-66

contribution limit. But the more funds given to 

candidates directly—as opposed to PACs or parties—

the lower the chance that those limits will be 

circumvented. Congress has already allowed 

contributions to parties and PACs at a particular 

level: $70,800 per biennium. Any additional funds 

Ms. James contributes to candidate committees 

must, as a result of the overall biennial limit of 

$117,000, come at the expense of PACs and party 

committees. Consequently, allowing Ms. James to 

contribute more to candidates directly, and less to 

PACs and parties, in fact alleviates Buckley’s anticircumvention concerns. Buckley and McConnell,

then, do not address Ms. James’s situation. 

III. Standard of review for aggregate 

contribution limits

 It has been the law for nearly four decades 

that, in cases involving limits on political 

contributions, government “action which may have 

the effect of curtailing the freedom to associate is 

subject to the closest scrutiny.”34 While Buckley used 

the phrase “the closest scrutiny,” recent case law 

affirms that contribution limits are subject to a lessstringent “exacting scrutiny” standard. A brief 

review of the case law on exacting scrutiny will 

outline the contours of the standard of review, and 

demonstrate why the challenged law cannot survive 

exacting scrutiny. 

 

34 Buckley, 424 U.S. at 25 (1976); FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 207 (1982) (both citing NAACP v. Ala. ex 

rel. Patterson, 357 U.S. 449, 460-61 (1958). 
App-67

Buckley was the first major case to address 

contribution limits and their accompanying standard 

of review. The Court recognized that contribution 

limits, like expenditure limits, “implicate 

fundamental First Amendment interests” which are 

traditionally subject to strict scrutiny.35

Nevertheless, the Court noted that “even a 

significant interference with protected rights of 

political association may be sustained if the state 

demonstrates a sufficiently important interest and 

employs means closely drawn to avoid unnecessary 

abridgement of associational freedoms.”36 The Court 

affirmed FECA’s contribution limits, but only 

because the restriction focused “precisely” on the 

problem of corruption.37 

Similarly, in McConnell,38 the Court explicitly 

acknowledged that expenditures received closer 

scrutiny than contributions. But the majority 

opinion also noted that contribution limitations are 

still subject to “heightened scrutiny” as they impinge 

on the protected freedoms of expression and 

association.39

Nixon v. Shrink Missouri Government PAC, 

gave the now-standard formula for exacting scrutiny 

in noting that a contribution limit could survive 

constitutional muster if it was “closely drawn” to 

 

35 Buckley, 424 U.S. at 23. 36 Id. at 25 (internal citations omitted). 37 Id. at 28. 38 McConnell, 540 U.S. at 134. 39 Id. at 145. 
App-68

match a “sufficiently important” interest.40 Yet, the 

Court declined to further clarify, stating that it did 

not “attempt to parse distinctions between the 

speech and association standards of scrutiny for 

contribution limits.”41 The Court simply stated that 

the quantum of evidence needed to satisfy judicial 

scrutiny would vary with the “novelty and 

plausibility of the justification raised.”42 Without 

enumerating any indicia or factors, the Court found 

that Missouri had met its factual burden.43 The case 

thus reaffirmed that contributions are somewhat 

less protected than expenditures, but not by how 

much, nor what specific factors would allow a 

contribution limitation to survive where an 

expenditure limit would not.

Finally, Randall v. Sorrell,

 44 a case concerning 

unconstitutionally-low contribution limits, 

articulated a two-part test for a challenged 

contribution restriction designed to determine if the 

contribution limit was “too low and too strict to 

survive First Amendment scrutiny.”45 The Court 

found that Vermont’s low contribution cap was 

 

40 Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 387-388 (2000) 

(internal citations omitted). 

41 Id. at 388. 42 Id. at 391. 43 Id. at 393. 44 Randall v. Sorrell, 548 U.S. 230 (2006). 45 Id. at 248 (articulating a two part test in which the court (1) 

determines if the statute has the “danger signs” of putting 

challengers and a significant disadvantage; and (2) reviews the 

record independently and carefully with an eye toward 

assessing the statute’s tailoring and proportionality). 
App-69

unconstitutional,46 but failed to clarify the precise 

level of scrutiny being applied. The ambiguity of the 

majority opinion did not escape the notice of other 

justices on the Court.47 Justice Thomas in particular 

noted that the review in Randall is based on 

immeasurable48 and arguably inappropriate49 factors. 

In effect, the standard of “exacting” scrutiny appears 

to apply to contribution limits,50 but how exacting the 

scrutiny is remains unclear. What is known it that it 

is a heightened standard, but a less stringent one 

than that applied to expenditure limits. 

Therefore, in light of recent case law, Plaintiff 

asks the court to review the statute under exacting 

scrutiny. Nevertheless, Plaintiff contends that 

BCRA’s sub-aggregate limit on candidate 

contributions fails any level of scrutiny. 

 

46 Id at 263. 47 Id. at 267-68 (Thomas, J., concurring) (“[N]either step of this 

test can be reduced to a workable inquiry to be performed by 

States attempting to comply with this Court’s jurisprudence.”). 

48 Id. at 267 (Thomas, J., concurring) (“[C]ourts have no 

yardstick by which to judge the proper amount and 

effectiveness of campaign speech.”) (internal citations omitted). 

49 Id. at 272 (Thomas, J., concurring) (“[T]ying an individuals’ 

First Amendment rights to the presence or absence of similar 

laws in other States is inconsistent with the First 

Amendment.”). 

50 Id. at 264 (Kennedy, J., concurring). 
App-70

IV. The aggregate contribution limit of 

$46,200 to candidate committees is not 

closely drawn to a sufficiently important 

governmental interest. 

Under exacting scrutiny, a law infringing on 

First Amendment rights may only be upheld if it is 

“closely drawn” to a “sufficiently important” 

interest.51 The Supreme Court has only permitted 

two such interests. The government may permissibly 

limit contributions to prevent corruption or the 

appearance of corruption.52 And the government may 

limit contributions so as to prevent contributors use 

of vehicles such as parties or PACs to circumvent 

individual contribution limits to particular candidate 

committees.53 Neither interest is threatened in this 

case. Consequently, the statute is not closely drawn 

to those interests and fails exacting scrutiny. 

The current aggregate limit for individuals is 

$117,000.54 However, the law does not permit an 

individual to contribute $117,000 to candidates. 

Instead, the statute caps all contributions to 

candidate committees at $46,200.55 The practical 

effect of this law is that individuals who wish to 

express their political views and exercise their 

associational rights by supporting candidates, and to 

 

51 Nixon, 528 U.S. at 387-388. 52Buckley, 424 U.S. at 28. 53 Id. at 45. See also McConnell, 540 U.S. at 145-154 (2003) 

(upholding restrictions on “soft money” under the anticircumvention rationale). 

54 2 U.S.C. § 441a(a)(3); 76 Fed. Reg. 8368 (Feb. 14, 2011). 

55 Id.
App-71

do so beyond $46,200, must seek other means of 

doing so. The means provided by BCRA is 

contributions to PACs or parties. Indeed, the mere 

existence of a biennial aggregate cap on individual 

contributions that is only a third of the total biennial 

aggregate cap itself actually directs individuals to 

contribute to parties or PACs—the very entities 

whose existence demands the need for an anticircumvention rationale in the first place, and the 

entities that are, if anything, disfavored by Buckley’s 

analysis. 

Consequently, BCRA forces individuals to 

associate with PACs or parties if they wish to 

contribute up to the legally-permissible biennial 

limit of $117,000. But Ms. James does not wish to 

associate with PACs or parties. She wishes to 

associate with individual candidates for office. 

Specifically, she wishes to contribute within the 

$2,500 contribution limit of 2 U.S.C. § 441a(a)(1)(A) 

to candidates of her choice up to a total of $117,000. 

Additionally, the anti-corruption interest is 

not threatened by Ms. James’s donations. In setting 

a cap of $117,000, Congress has determined that 

total contributions in this amount from a single 

individual are not corrupting.56 Moreover, in drafting 

the categorical limits, Congress determined that 

individual contributions to candidate committees 

consistent with the limits of 2 U.S.C. § 

441a(a)(1)(A)57 are non-corrupting. Since Ms. James 

 

56 See Buckley, 424 U.S. at 25. 57 $2500 in 2012. See 76 Fed. Reg. 8368 (Feb. 14, 2011). 
App-72

is willing to adhere to both the limits on individual 

candidate contributions and the aggregate 

contribution limit, there is no further anti-corruption 

interest served by the ‘sub-aggregate’ limit of 2 

U.S.C. §441a(a)(3)(A). 

Furthermore, the threat of corrupting “soft 

money” that the Supreme Court acknowledged in 

McConnell does not present any threat in the instant 

case: BCRA has outlawed all soft money 

contributions to parties.58 Therefore, the ‘soft money’ 

threat of corruption has no application to biennial 

limits or to Ms. James. 

Since neither of the sufficiently important 

interests are affected by Ms. James’s wish to 

contribute only to candidate committees, the 

biennial aggregate limit cap is not properly tailored 

and does not pass exacting scrutiny as it applies to 

Ms. James. In fact, because each dollar Ms. James 

contributes to a candidate is a dollar that cannot be 

contributed to a PAC or party as “unearmarked 

contributions to political committees likely to 

contribute to that candidate, or huge contributions to 

the candidate's political party,”59 her desired 

contributions would in fact lessen the danger of 

circumvention that concerned the Supreme Court in 

Buckley. 

 

58 McConnell, 540 U.S. at 133. 59 Buckley, 424 U.S. at 38. 
App-73

A. 2 U.S.C. §441a(a)(3)(A), as applied, is 

not rationally related to a legitimate 

governmental interest. 

While the standard for determining the 

constitutionality of a statute affecting First 

Amendment rights is exacting scrutiny,60 2 U.S.C. 

§441a(a)(3)(A) also does not survive rational basis 

review. As stated supra, there are only two interests 

that the government may rely upon in limiting 

contributions—1) the prevention of corruption or the 

appearance of corruption, and 2) the anticircumvention rationale in the case of soft money. 

In essence, the limit on aggregate contribution 

limits to candidates limits the number of candidates 

with which one may associate. BCRA does not 

consider an individual contributing to eighteen 

candidates to pose a risk of corruption or its 

appearance.61 But the nineteenth candidate cannot 

be supported at the same level as the previous 

eighteen. Nor may our hypothetical contributor 

associate with a twentieth candidate at all. 

 

60 Of course, a statute that cannot survive lesser standards of 

review cannot, by definition, survive strict scrutiny. See FEC v. 

Wis. Right To Life, Inc., 551 U.S. 449, 464 (2007). 61 The $46,200 sub-aggregate limit, divided by the $2,500 limit 

on contributions to candidates, yields eighteen candidates to 

whom the full $2,500 may be given. Similar calculations are 

used for the remainder of the paragraph. The number is, of 

course, lower if a contributor supports the candidate in both the 

primary and general elections. 
App-74

Such a line is arbitrary and lacking in 

foundation. Moreover, to prohibit association with a 

twentieth candidate, but allow significant additional 

contributions to entities which may in turn make 

unearmarked contributions of that money to the 

twentieth candidate, is a decision without any 

rational basis. 

V. If this Court does not issue a 

preliminary injunction, Ms. James will 

suffer irreparable harm, but the FEC 

will not suffer irreparable harm if the 

injunction is granted. 

The First Amendment is foundational to our 

political process, and so the loss of the freedom of 

association is particularly harmful during an 

election cycle. The Supreme Court held that the “loss 

of First Amendment freedoms, for even minimal 

periods of time, unquestionably constitutes 

irreparable injury.”62 Furthermore, political activity 

is particularly time-sensitive,63 especially in a major 

election year. 

 

62 Elrod v. Burns, 427 U.S. 347, 373 (1976) (“‘Inasmuch as this 

case involves First Amendment rights of association which 

must be carefully guarded against infringement by public office 

holders, we judge that injunctive relief is clearly appropriate in 

these cases.’ We agree...It is clear therefore that First 

Amendment interests were either threatened or in fact being 

impaired at the time relief was sought. The loss of First 

Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.”) (internal 

citation omitted). 

63 Id. at 374, fn. 29 (recognizing timeliness of action in context 

of political speech) (citing Carroll v. Princess Anne, 393 U.S. 
App-75

Here, Ms. James wishes to associate one-onone with candidates in this election. Elections are, by 

nature, time sensitive and non-repeating; 2012’s 

contest is no exception. While there will be another 

federal election in two years, the candidates and 

issues will change—that is, no future election will be 

this election. Additionally, candidates elected in this 

election will cast votes on vital legislation in the next 

Congress. Ms. James wishes to associate with 

particular candidates this term in the context of the 

current political climate. Restricting her ability to do 

so will irreparably harm her, in violation of the First 

Amendment. 

In contrast, the FEC will not suffer 

irreparable injury if this Court grants the relief Ms. 

James seeks. No party can be injured through lack of 

enforcement of a statute that violates the First 

Amendment.64 Any injury the FEC could allege 

would stem from their interest in preventing actual 

 

175, 182 (1968) and Wood v. Georgia, 370 U.S. 375, 391-392 

(1962)). 

64 See, e.g., Joelner v. Village of Wash. Park, 378 F.3d 613, 620 

(7th Cir. 2004) (“Concomitantly, there can be no irreparable 

harm to a municipality when it is prevented from enforcing an 

unconstitutional statute because it is always in the public 

interest to protect First Amendment liberties.”) (internal 

quotation marks and citations omitted); Florida Businessmen 

for Free Enterprise v. Hollywood, 648 F.2d 956, 959 (5th Cir. 

1981) (“Given appellants' substantial likelihood of success on 

the merits, however, the harm to the city from delaying 

enforcement is slight. The public interest does not support the 

city's expenditure of time, money, and effort in attempting to 

enforce an ordinance that may well be held unconstitutional”) 

(internal citations omitted). 
App-76

or apparent political corruption. Indeed, the purpose 

of the contribution limits in FECA65 and BCRA66 is to 

avoid this phenomenon. 

But neither actual nor apparent corruption 

are at issue in this case. Ms. James will submit to 

the candidate contribution limits and the aggregate 

biennial limit. She will therefore not give beyond the 

limit for each candidate, which Congress has set at 

what is—in its judgment—a non-corrupting level.67

Ms. James intends to follow the aggregate limits as 

well. She asks for the freedom to choose in which 

manner and with whom to associate. Consequently, 

the sub-aggregate limit on contributions to candidate 

committees is unconstitutional as applied to her. 

Finally, as discussed supra, the courts have 

consistently noted their concern that limits on 

contributions to candidates could be circumvented by 

 

65 Buckley, 424 U.S. at 26 (“It is 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”). 

66 See, e.g. McConnell, 540 U.S. at 136 (“Our treatment of 

contribution restrictions reflects more than the limited burdens 

they impose on First Amendment freedoms. It also reflects the 

importance of the interests that underlie contribution limits--

interests in preventing "both the actual corruption threatened 

by large financial contributions and the eroding of public 

confidence in the electoral process through the appearance of 

corruption”) (applying the anticorruption rationale in 

examining BCRA) (internal citations omitted). 

67 See, e.g., id. at 137-138 (stating that Congress relied on 

Buckley and its progeny when setting contribution limits in 

BCRA). 
App-77

contributions to parties. Since Ms. James will not 

contribute to parties or PACs, the anticircumvention rationale does not apply. Ms. James 

should not be forced to stay within a predetermined 

party or PAC framework, and instead this Court 

should restore her freedom to associate one-on-one 

with candidates of her choosing. 

As discussed supra, the sub-aggregate limits 

on candidate contributions do not survive any level 

of scrutiny and are therefore unconstitutional as 

applied to Ms. James. Thus, the FEC cannot be 

harmed by an injunction against an unconstitutional 

application of this statute. 

VI. If this court issues a preliminary 

injunction, it will further the public 

interest in protecting the First 

Amendment. 

The issuance of a preliminary injunction in 

this case would further the public interest by 

protecting the freedom of association. While a 

preliminary injunction is an extraordinary remedy, 

courts may “go much farther” in granting relief when 

a public (as opposed to private) interest is at stake.68

 

68 Nat’l Ass’n. of Farmworkers Org’s v. Marshall, 628 F.2d 604, 

616 (D.C. Cir. 1980) (“As the Supreme Court has held, Courts 

of equity may, and frequently do, go much farther both to give 

and withhold relief in furtherance of the public interest than 

they are accustomed to go when only private interests are 

involved”) (citing Virginian Ry. Co. v. System Fed’n, 300 U.S. 

515, 552, (1937), quoted with approval, Yakus v. United States, 

321 U.S. 414, 441, (1944)). 
App-78

Constitutional rights are a prime example of an 

arena that seriously implicates the public interest.69

Since “no party has an interest in the enforcement of 

an unconstitutional law,” the public interest is best 

protected by issuing a preliminary injunction.70 Even 

greater care is taken to protect the First 

Amendment.71

This case is based upon the First Amendment 

right of association at a crucial moment: an election 

year. While it involves very real and important First 

Amendment rights, it only examines a small portion 

of campaign finance law: how a contributor can 

spend (or is prohibited from spending) their money 

subject to the candidate contribution and aggregate 

limits. So while the importance to the public is high, 

the relative impact on administration of campaign 

finance laws is low. Therefore, issuing a preliminary 

injunction would protect Ms. James’s First 

 

69 Green v. Kennedy, 309 F. Supp. 1127, 1139 (D.D.C. 1970) 

(“Equity properly grants relief when considerations of public 

interest are involved, as distinguished from purely private 

interest. This principle is properly invoked by plaintiffs 

claiming denial of constitutional rights”) (citations omitted). 

70 ACLU v. Reno, 929 F. Supp. 824, 849 (E.D. Pa. 1996) (citing 

Elrod, 427 U.S. at 373-74; Hohe v. Casey, 868 F.2d 69, 72 (3d 

Cir. 1989), cert. denied, 493 U.S. 848 (1989); Acierno v. New 

Castle Cnty., 40 F.3d 645, 653 (3d Cir. 1994)). 71 See, e.g., ACLU v. Reno, 929 F. Supp. at 851 (“No long string 

of citations is necessary to find that the public interest weighs 

in favor of having access to a free flow of constitutionally 

protected speech”) (internal citations omitted); K.H. Outdoor, 

LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) 

(“The public has no interest in enforcing an unconstitutional 

ordinance” in the First Amendment context) (internal citations 

omitted). 
App-79

Amendment rights while not greatly impacting the 

administration of the current campaign finance 

regime. Importantly, the aggregate amount of money 

available for contribution to regulated entities would 

not increase. 

Conclusion 

 

 The “sub-aggregate” contribution limits can 

only be upheld if, as applied to Plaintiff, they enforce 

the government’s anti-corruption or anticircumvention interests. They do not. Therefore, the 

FEC’s enforcement of the statute threatens Ms. 

James’s First Amendment right of association in this 

election. 

For the foregoing reasons, Ms. James 

respectfully asks this Court to grant her motion for 

preliminary injunction. 

Respectfully submitted this 4th day of September, 

2012. 

 /s/ Allen Dickerson

 Allen Dickerson, D.C. Bar No. 1003781 

 Center for Competitive Politics 

 124 West Street South, Ste. 201 

 Alexandria, Virginia 22314 

 Phone: 703.894.6800 

 Facsimile: 703.894.6811 

 adickerson@campaignfreedom.org 

 
App-80

CERTIFICATE OF SERVICE 

I hereby certify that on the 5th day of 

September, 2012, I caused the foregoing document to 

be served on the following, via electronic and First 

Class mail: 

David Kolker 

Associate General Counsel 

Federal Election Commission 

999 E Street, NW 

Washington. D.C. 20436 

Phone: 202.694.1650 

Facsimile: 202.219.0260 

Email: dkolker@fec.gov 

Counsel for Defendant, FEC 

 /s/ Allen Dickerson

 Allen Dickerson 
App-81

APPENDIX H 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civil Action No. 12-

1451 

 

(JEB)(JRB)(RLW) 

 

Three-Judge Court 

PLAINTIFF’S RESPONSE TO ORDER TO SHOW 

CAUSE 

 

On September 28, 2012 this Court issued an 

opinion and order in McCutcheon v. FEC, Civil No. 

12-1034, rejecting those plaintiffs’ facial challenge to 

the aggregate limits on contributions to candidate 

committees. This Court subsequently ordered 

Plaintiff Virginia James to show cause why her suit 

should not be dismissed for the reasons set forth in 

that opinion. 

There are three principal reasons why the 

McCutcheon decision does not control here. 

First, and most clearly, that ruling relied 

entirely on the “anti-circumvention” rationale 
App-82

announced in Buckley v. Valeo, 424 U.S. 1, 38 

(1976). McCutcheon v. FEC, slip op. at 9 (“we cannot 

ignore the ability of aggregate limits to prevent 

evasion of the base limits.”). But Ms. James’s 

challenge does not implicate that rationale. Indeed, 

her preferred course of conduct would substantially 

reduce the possibility that her contributions could be 

used to circumvent the base limits. Ms. James will 

contribute only directly to candidate committees, 

and not to the various entities, such as parties, that 

both the Supreme Court and this Panel viewed as 

potential conduits for circumvention. See 

McCutcheon at 9-10. 

Second, the McCutcheon plaintiffs brought a 

facial challenge to the aggregate limit on 

contributions to candidate committees. Ms. James 

brings a narrow as-applied challenge, one which 

accepts both the base limitation and the overall 

limitation imposed by Congress. In such 

circumstances, as-applied challenges are not 

foreclosed by a prior ruling on a facial challenge. 

Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411-

412 (2006) (per curium) (“WRTL I”) (“In upholding [a 

section of BCRA] against a facial challenge, we did 

not purport to resolve future as-applied 

challenges.”). 

Third, even if this Panel did view McCutcheon 

as raising merely an as-applied challenge, the 

differences between that case and this are extensive. 

McCutcheon challenged the aggregate limits to party 

committees; Ms. James specifically does not wish to 

contribute to party committees. McCutcheon 
App-83

involved a plaintiff who wished to give substantial 

sums to committees that could then contribute those 

funds to candidates, potentially circumventing the 

limits on contributions to individual candidate 

committees. Ms. James wishes to give directly to 

individual candidates, eliminating any possibility of 

circumventing the limits on such contributions.1

McCutcheon asked this Court to eliminate all 

aggregate limits, potentially allowing individuals to 

contribute millions of dollars in each election cycle. 

McCutcheon at 3 n. 1 (noting that an estimate of 

$3.5 million for individual contributions was, in fact, 

conservative). Ms. James specifies that she does not 

intend to give more than the $117,000 Congress 

already allows.2 She challenges only the distribution 

of those funds, and does so in a way that would 

lessen the possibility of circumvention. 

I. The McCutcheon opinion does not 

address Ms. James’s argument. 

This Court upheld the aggregate limit on 

contributions to candidate committees on pages 9 

and 10 of its Memorandum Opinion. It explicitly 

noted that it did so based on the “ability of aggregate 

limits to prevent evasion of the base limits.” 

McCutcheon at 9. Ms. James’s challenge, however, is 

premised on the fact that her desired activities do 

not implicate this anti-circumvention concern. 

 

1 James V.Complaint ¶¶ 13, 21, ECF No. 1. 

2 James V.Complaint ¶¶ 20, 23. 
App-84

The decision in Buckley v. Valeo established 

that aggregate limits could be enacted 

“to prevent evasion of [individual] 

contribution limitation[s] by a person 

who might otherwise contribute massive 

amounts of money to a particular 

candidate through the use of 

unearmarked contributions to political 

committees likely to contribute to that 

candidate, or huge contributions to the 

candidate’s political party.” Buckley,

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

The McCutcheon case presented just such a 

situation: it sought to lift the aggregate limits on 

non-candidate committees, precisely the entities 

Buckley identifies as potential conduits for 

unearmarked contributions. 

 This Court’s opinion in McCutcheon therefore 

appropriately keyed its analysis to Buckley’s 

concerns. Specifically, it noted a telling hypothetical: 

what if an individual contributes $500,000 to a joint 

fundraising committee, which was then funneled 

through party committees and spent on coordinated 

expenditures in support of a particular candidate? 

McCutcheon at 9-10. In such a situation, the 

supported candidate would “know precisely where to 

lay the wreath of gratitude.” Id. at 10. Moreover, 

despite the transaction costs inherent in such a 

scheme, “it is not hard to imagine a situation where 

the parties implicitly agree to such a system” 

because, in part, of the lack of “meaningful 
App-85

separation between the national party committees 

and the public officials who control them.” Id. 

Consequently, this Court found that the aggregate 

limits were justified. 

 But no part of this analysis – the joint 

fundraising committee, the role of political parties, 

the possibility of coordinated expenditures, or the 

size of the underlying contribution – bear any 

resemblance to Ms. James’s claims. 

 Ms. James does not argue that aggregate 

limits are unconstitutional. She argues that a law 

that forbids certain direct contributions to 

candidates, while allowing those same funds to go to 

PACs and parties which may, in turn, contribute to 

those same candidates, cannot withstand 

constitutional scrutiny. The McCutcheon opinion 

explains the dangers of circumvention, and the role 

of party committees and PACs in increasing that 

danger. Such reasoning applied to McCutcheon, with 

its particular plaintiffs: a party committee and an 

individual wishing to entirely remove aggregate 

limits. But it does not apply to Ms. James. 

II. McCutcheon challenged the candidate 

sub-aggregate limit facially, but Ms. 

James makes an as-applied 

challenge. 

McCutcheon challenged the “biennial limit on 

contributions to candidate committees (currently 

$46,200 per biennium) at 2 U.S.C. § 441a(a)(3)(A) as 

unconstitutional because it lacks a constitutionally 
App-86

cognizable interest to justify it.”3

 McCutcheon sought 

“a declaratory judgment holding the biennial 

contribution limit at 2 U.S.C. § 441a(a)(3)(A) 

unconstitutional because the provision lacks a 

cognizable interest.”4McCutcheon also sought a 

declaration that the candidate sub-aggregate limit 

was unconstitutional because it was too low.5

 That is, 

the challenge was a facial challenge to the subaggregate limit on total candidate contributions. 

Moreover, this Court treated the McCutcheon

claims as facial in rendering its decision. To prevail 

in a facial challenge, the plaintiffs must show that 

no set of circumstances exists under which the law 

would be valid. Reno v. Flores, 507 U.S. 292, 301 

(1993) (citing United States v. Salerno, 481 U.S. 739, 

745 (1987) and Schall v. Martin, 467 U.S. 253, 268 n. 

18 (1984)). Facial challenges go beyond the specific 

facts of the claimant to examine “whether, given all 

of the challenged provision's potential applications, 

the legislation creates such a risk of curtailing 

protected conduct as to be constitutionally 

unacceptable ‘on its face.’” Sanjour v. EPA, 56 F.3d 

85, 92 nt. 10 (D.C. Cir. 1995). 

Here, the Court examined the aggregate limit 

itself, and made use of hypothetical situations under 

which the aggregate limits could be upheld. For 

example, the Court posited that an individual could 

give $500,000 in a single check to a joint fundraising 

 

3 McCutcheon V.Compl. ¶ 122, ECF No. 1. 

4 Id. Prayer for Relief, ¶ 10. 

5 Id. Prayer for Relief, ¶ 12. 
App-87

committee, triggering Buckley’s anti-circumvention 

interest. McCutcheon, slip op. at 9. Furthermore, the 

Court rejected McCutcheon’s arguments that the 

limits were unconstitutionally low and 

unconstitutionally overbroad. Id. at 10. In so doing, 

the Court used analysis consistent with a facial 

challenge, not as an as-applied challenge. 

Importantly, the decision makes no mention of the 

specific contributions the parties wished to make. 

A decision on a facial challenge does not 

foreclose later, as-applied challenges. In WRTL I, the 

Supreme Court specifically held that the fact that a 

statute was upheld facially does not protect it from 

an as-applied challenge. WRTL I, 546 U.S. 410, 411-

412 (2006). Even though McConnell v. FEC, 540 U.S. 

93 (2003), upheld the Bipartisan Campaign Reform 

Act (“BCRA”), Pub.L. 107-155, 116 Stat. 81 (2002), § 

203, that decision did not preclude subsequent as 

applied challenges to portions of BCRA. WRTL I, 546 

U.S. at 411-412; FEC v. Wis. Right to Life, Inc., 551 

U.S. 449, 456 (2007) (“WRTL II”). 

Indeed, the plaintiffs in WRTL I went on to 

succeed in their as-applied challenge in WRTL II.

See WRTL II, 554 U.S. at 482. While the McConnell

plaintiffs could not, on their record, “carr[y] their 

heavy burden of proving" that BCRA was facially 

overbroad, the Court nonetheless turned its 

attention to the specific facts presented by WRTL in 

their as-applied challenge. WRTL II, 551 U.S. at 456. 

Ultimately the Court found that, as-applied to the 

specific ads written by WRTL, BCRA was 

unconstitutional. Id. at 481. 
App-88

This case presents a similar situation. The 

McCutcheon plaintiffs did not succeed in 

demonstrating that the limits on aggregate 

contributions to candidates were either facially 

unconstitutional or “too low.” Nor did they plead 

specific facts – such as the maximum contributions 

the parties intended to make or receive – that would 

have made an as-applied analysis appropriate. 

By contrast, Ms. James does plead such facts. 

And, while a successful facial challenge to 2 U.S.C. § 

441a(a)(3)(A) would have resolved her claims, the 

decision in McCutcheon does not prevent Ms. James 

from presenting her specific case, on an as-applied 

basis, to this Court. Just as McConnell involved a 

general attack on BCRA, while WRTL involved 

specific ads with specific language, so McCutcheon 

represented a facial attack on BCRA’s aggregate 

limits, while this case presents specific contributions 

with specific limits.

III. Even if McCutcheon is viewed as an 

as-applied challenge to the aggregate 

limit on contributions to candidate 

committees, the facts in that case 

differ significantly from the facts 

presented here. 

Generally, as-applied challenges are factdriven. In as applied challenges, different facts can 

yield different results, even where the same statue is 

challenged. To the extent, if any, that Mr. 

McCutcheon challenged the candidate sub-aggregate 
App-89

limit as-applied, the facts in his case are 

significantly different from those presented here. 

Mr. McCutcheon intended to give $54,400 to 

Federal candidates in the 2012 election cycle. 

McCutcheon V.Complaint ¶¶ 27, 28. In the next 

biennium, he intends to give an amount north of 

$60,000 to candidate committees. Id. ¶32. 

Importantly, he did not say precisely how much he 

intended to give in future years. 

 

Combined with his giving to non-candidate 

committees (a planned $97,000 in the 2012 cycle and 

an unstated amount in the future), Mr. McCutcheon 

plainly intended to exceed the $117,000 overall cap 

on political contributions. McCutcheon V.Complaint 

¶¶ 37, 38. Pointedly, McCutcheon intended to donate 

$25,000 each to the Republican National Committee, 

the National Republican Senatorial Committee, and 

the National Republican Congressional Committee. 

McCutcheon V.Compl. ¶¶ 34, 35. 

Furthermore, the McCutcheon plaintiffs 

included both a contributor and a political party, the 

Republican National Committee (“RNC”). Indeed, 

the RNC asserted a right to receive the contributions 

from Mr. McCutcheon. McCutcheon V.Compl. ¶ 78. 

In connection thereto, McCutcheon challenged the 

limits to national parties and non-candidate 

committees. Id. ¶ 85, ¶¶ 107, ¶¶ 113. Therefore, 

McCutcheon challenged, by implication, the biennial 
App-90

aggregate contribution limit of $117,000.6

McCutcheon at 4. 

Ms. James’s case differs substantively. She 

specifically wishes not to associate with any political 

party.7 She brings this challenge alone, without any 

party, political action committee, or other entity.8

She is not challenging any of the other sub-aggregate 

contribution limits. She is not challenging the 

biennial aggregate limit of $117,000.9 She merely 

wishes to associate one-on-one with candidates and 

not be forced to associate with groups or 

organizations simply to contribute up to the full 

biennial aggregate limits.10 

With different facts comes a different analysis 

between as-applied challenges. Ms. James and Mr. 

McCutcheon include different types of parties and 

are challenging different aspects of the aggregate 

limits. Most importantly, Ms. James’s contributions 

would be (1) limited, and (2) not capable of creating 

an anti-circumvention concern. Therefore, even if the 

McCutcheon verified complaint may be read as 

asserting an as-applied challenge, and even if this 

Panel intended to address such a claim in its 

opinion, Ms. James is not similarly situated to the 

 

6 McCutcheon sought to contribute $54,400 to candidates and 

$97,000 to non-candidate committees, totaling $151,400. 

7 Doc 1 ¶ 19 ; Doc 9 p. 2. 

8 Doc. 1. ¶ 11. 

9 James V.Complaint, ¶¶ 20, 23; James Opp’n to Designation as 

a Related Case, pp. 2-3, ECF No. 9. 

10 James V.Complaint ¶¶ 13, 21, 23; James Opp’n to 

Designation as a Related Case, pp. 2-3. 
App-91

McCutcheon plaintiffs. She consequently deserves 

full and separate consideration of her claims. 

Conclusion 

McCutcheon does not control the outcome of 

Ms. James’s case. The opinion’s reasoning is 

inapplicable, on its face, to the particular claims she 

brings before this Court. Moreover, under WRTL I, 

an as-applied challenge may be brought even if a 

facial challenge to the same statute previously 

failed. Finally, the facts in McCutcheon differ 

significantly from those posed by this case, so Ms. 

James is not similarly situated to the McCutcheon 

plaintiffs. Therefore, for the forgoing reasons, this 

case should not be dismissed for the reasons set forth 

in McCutcheon. 

Plaintiff hastens to add that the election in 

which Ms. James wishes to participate in less than 

one month away. Consequently, she requests that 

this Court schedule a hearing on her claims for the 

earliest possible time, so that her claims may be 

heard while there is still time for her to exercise her 

rights. 

Respectfully submitted this 9th day of 

October, 2012. 

 /s/ Allen Dickerson

 Allen Dickerson, D.C. Bar No. 1003781 

 Tyler Martinez* 

 Anne Marie Mackin* 

 [SIGNATURE BLOCK OMITTED IN APPX.]
App-92 

CERTIFICATE OF SERVICE 

I hereby certify that on the 9th day of October, 

2012, I caused the foregoing documents to be filed 

electronically using the CM/ECF system, causing 

notice to be sent to the parties listed below: 

Adav Noti 

anoti@fec.gov 

Counsel for Defendant, FEC 

 /s/ Allen Dickerson

 Allen Dickerson 

 
App-93 

APPENDIX I 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VIRGINIA JAMES, 

Plaintiff, 

v. 

FEDERAL ELECTION 

COMMISSION, 

Defendant. 

Civ. No. 12-1451 

 

(JEB)(JRB)(RLW) 

OPPOSITION TO 

RESPONSE TO 

ORDER TO SHOW 

CAUSE 

 

DEFENDANT FEDERAL ELECTION 

COMMISSION’S OPPOSITION TO PLAINTIFF’S 

RESPONSE TO ORDER TO SHOW CAUSE 

Pursuant to the Court’s Minute Order of 

October 11, 2012, defendant Federal Election 

Commission respectfully submits the following 

opposition to plaintiff’s Response to Order to Show 

Cause (Docket No. 17) (“Pl.’s Show Cause Br.”). 

This Court’s opinion in McCutcheon v. FEC1

disposes of plaintiff’s claims. Plaintiff’s plan to 

contribute more than $100,000 to federal candidates 

presents at least the same potential of circumventing 

the anti-corruption provisions of the Federal 

Election Campaign Act (“FECA”) as did Mr. 

 

1 Civ. No. 12-1034, slip op. (D.D.C. Sept. 28, 2012). 
App-94 

McCutcheon’s plan to contribute more than $50,000 

to federal candidates. Plaintiff’s attempts to 

distinguish this case from McCutcheon fail because 

they rely entirely on inaccurate and irrelevant 

assertions of law, none of which can overcome 

McCutcheon’s faithful application of Buckley v. 

Valeo, 424 U.S. 1 (1976), or provide any basis for 

reaching a different result here. 

LEGAL AND FACTUAL BACKGROUND 

FECA provides than an individual may 

contribute no more than $2,500 per election to any 

federal candidate, 2 U.S.C. § 441a(a)(1), and no more 

than $46,200 to all federal candidates 

combined during a two-year election cycle, 2 U.S.C. § 

441a(a)(3)(A). The history and purpose of these 

provisions are set forth in McCutcheon, slip op. at 1-

3. See also Def.’s Opp. to Pl.’s Mot. for Prelim. Inj. at 

1-4, McCutcheon v. FEC, Civ. No. 12-1034 (D.D.C. 

July 9, 2012 (Docket No. 16)) (“FEC Br.”). 

Plaintiff Virginia James is an individual 

United States citizen who alleges a desire to 

contribute more than $46,200 but no more than 

$117,000 to federal candidates during the current 

election cycle. (Compl. ¶ 5.) So far, James has 

contributed $27,000 to candidates and $5,000 to a 

federal political committee (“PAC”). (Compl. ¶¶ 15, 

17.) She has also given more than $1 million to 

“super PACs,” i.e., political committees that make no 

direct contributions but pay for independent 
App-95 

expenditures that expressly advocate the election or 

defeat of candidates.2

ARGUMENT 

This Court’s opinion in McCutcheon — 

particularly its interpretation and application of 

Buckley— controls this case. McCutcheon noted that 

at the time of Buckley, FECA imposed two relevant 

limits on contributions by individuals: A base limit of 

$1,000 on contributions to candidates, and an 

aggregate limit of $25,000 per two-year election cycle 

to all candidates, political parties, and PACs 

combined. McCutcheon, slip op. at 1-2; see generally

FEC Br. at 1-4 (describing statutory scheme). In 

assessing the constitutionality of these provisions, 

Buckley acknowledged that the aggregate limit was 

a “restriction on associational freedom” but held that 

“this quite modest restraint upon protected political 

activity serves to prevent evasion” of the base limit 

on contributions to candidates. 424 U.S. at 38; see 

also FEC Br. at 3, 7-9 (discussing Buckley). 

Recognizing this, McCutcheon reiterated Buckley’s 

conclusion that the aggregate limit is constitutional 

as “‘a corollary of the basic individual contribution 

limitation,’” McCutcheon, slip op. at 9 (quoting 

Buckley, 424 U.S. at 38), which the Supreme Court 

had found constitutional earlier in its opinion, see 

Buckley, at 26-29. 

 

2 A list of plaintiff’s contributions can be obtained by entering 

her name into the FEC’s contribution-search page at 

http://www.fec.gov/finance/disclosure/norindsea.shtml. 
App-96 

Regarding limits on individual contributions 

to candidates, the only thing that has changed since 

Buckley is that the dollar amounts have been raised: 

The base limit is now $2,500, and the aggregate 

limit is now $46,200. See 2 U.S.C. § 441a(a)(1); 

McCutcheon, slip op. at 3. As McCutcheon held, the 

fact that these dollar amounts are now different 

than they were at the time of Buckley is not of 

constitutional concern. McCutcheon, slip op. at 10-11 

(rejecting argument that Court should “parse 

legislative judgment about what limits to impose”). 

Accordingly, the only way plaintiff can prevail here 

is by demonstrating that Buckley’s upholding of the 

aggregate limit is no longer good law — an 

exceedingly difficult burden to meet, given that the 

Supreme Court has never overruled that holding or 

called it into question. McCutcheon, slip op. at 6 

(“[W]e decline Plaintiffs’ invitation to anticipate the 

Supreme Court’s agenda.”) (citing Rodriguez de 

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 

484 (1989)). 

McCutcheon emphatically confirms Buckley’s 

continued viability as to the important anticircumvention interest served by FECA’s aggregate 

contribution limits. McCutcheon, slip op. at 9. 

Indeed, McCutcheon disposes of plaintiff’s claims in 

their entirety because candidates — like political 

parties and PACs — can serve as conduits for 

circumventing the individual contribution limits. 

Just as a contributor could give $5,000 to a number 

of PACs that in turn give to one candidate, a 

contributor could give $5,000 to multiple candidates 

who in turn give to one candidate. This is not mere 
App-97 

speculation. Members in “safe” legislative districts 

(or with ample resources) collectively contribute 

millions of dollars to other members of their party 

facing more difficult elections.3

 For example, in this 

election cycle alone, federal candidates have used the 

contributions they received to make the following 

contributions to other candidates: 

• 57 contributions totaling $71,000 from 

federal candidates’ committees to the 

campaign of Kathy Hochul 

• 45 contributions totaling more than 

$60,000 from federal candidates’ 

committees to the campaign of Joe 

Donnelly 

• 44 contributions totaling more than 

$59,000 from federal candidates’ 

committees to the campaign of 

Francisco Canseco 

• 43 contributions totaling $57,500 from 

federal candidates’ committees to the 

campaign of Betty Sutton 

• 45 contributions totaling $57,000 from 

federal candidates’ committees to the 

campaign of Lois Capps 

 

3 Except where noted otherwise, all contribution and transfer 

figures in this brief were calculated from the FEC databases at 

http://www.fec.gov/finance/disclosure/ftpdet.shtml and 

http://www.fec.gov/data/DataCatalog.do?cf=downloadable. At 

the time of filing, the databases for the current election cycle 

include transactions from January 2011 through September 

2012. 
App-98 

• 35 contributions totaling $54,000 from 

federal candidates’ committees to the 

campaign of Louise Slaughter 

As these examples demonstrate, plaintiff’s desired 

relief would allow her to give over $100,000 to 

candidates with ample war chests, knowing that 

they are in turn likely to contribute that money to 

the campaigns of their threatened colleagues. See 

Buckley, 424 U.S. at 38 (noting that aggregate limit 

prevents contributor from evading limit on 

contributions to a candidate “through the use of 

unearmarked contributions to political committees 

likely to contribute to that candidate”); 2 U.S.C. § 

431(5) (defining a candidate’s “principal campaign 

committee” as one type of political committee).4

Plaintiff baldly asserts that her contributions are 

“not capable of creating an anti-circumvention 

concern” (see Pl.’s Show Cause Br. at 10), but she 

provides no facts or argument whatsoever to support 

this contention, which must in any event fail in light 

 

4 The phenomenon of “leadership PACs” — i.e., a PAC 

established by an elected official to collect and spend funds in 

support of his colleagues — further demonstrates candidates’ 

willingness to serve as conduits between individual 

contributors and other candidates. There are hundreds of 

leadership PACs, and they have raised over $100,000,000 in 

the current election cycle alone. See FEC, 2012 Leadership 

PACs and Sponsors, 

http://www.fec.gov/data/Leadership.do?format=html&election_y

r=2012 (last visited Oct. 19, 2012). Officeholders have used 

these funds to contribute more than $30,000,000 to other 

federal candidates. See OpenSecrets.org, Leadership PACs, 

http://www.opensecrets.org/pacs/industry.php?txt=Q03&cycle=

2012 (last visited Oct. 19, 2012). 
App-99 

of the plain holdings of McCutcheon and Buckley, as 

discussed above. Channeling funds through this 

method could easily circumvent the $2,500 base limit 

on plaintiff’s direct contributions to each of the 

targeted candidates, and the aggregate limit is a 

constitutional method of preventing such 

circumvention.5 See McCutcheon, slip op. at 9-10. 

Furthermore, there is no limit on the amount 

that a candidate can contribute to a political party. 

Candidates in safe seats accordingly transfer 

campaign funds to their parties on a massive scale, 

including more than $24 million to the national 

Democratic Party and more than $35 million to the 

national Republican Party in this election cycle. 

These transfers finance the parties’ activities on 

behalf of candidates in contested races — activities 

such as “coordinated expenditures, which have no 

‘significant functional difference’ from . . . direct 

candidate contributions.” McCutcheon, slip op. at 9-

10 (quoting FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 460 (2001)). Thus, in the 

absence of the aggregate limit, there would be a 

potential for circumvention identical to that which 

this Court recognized in McCutcheon: contributors 

giving a large number of contributions within the 

base limits (but aggregating well above the 

 

5 As Buckley and McCutcheon each recognized, it is irrelevant 

for constitutional purposes whether plaintiff herself intends to 

engage in such circumvention. See McCutcheon, slip op. at 12 

(“The Buckley Court rejected challenges that the contribution 

limits are overbroad because most contributors are not seeking 

a quo for their quid . . . . [W]e join the Buckley Court in 

rejecting [that claim] . . . .”) (citing 424 U.S. at 30). 
App-100 

aggregate limits) with the understanding that many 

of these contributions will end up in the hands of the 

parties to be spent in support of the contributors’ 

preferred candidates. As this Court held, “it may 

seem unlikely that so many separate entities would 

willingly serve as conduits for a single contributor’s 

interests. But it is not hard to imagine a situation 

where the parties implicitly agree to such a system, 

and there is no reason to think the quid pro quo of 

an exchange depends on the number of steps in the 

transaction.” McCutcheon, slip op. at 10 (emphasis 

added; internal citations omitted). 

In addition to asking the Court to disregard 

McCutcheon and Buckley, plaintiff claims that the 

aggregate limit on contributions to candidates is 

unconstitutional because it “force[s her] to associate 

with groups or organizations simply to contribute up 

to the full biennial aggregate limits.” (Pl.’s Show 

Cause Br. at 10.) She argues that, rather than being 

limited to $46,200 in candidate contributions, she 

must be allowed to contribute $117,000 directly to 

candidates because “Congress already allows” that 

amount through the candidate and non-candidate 

aggregate limits combined. (Id. at 3.) Plaintiff’s 

argument seems to be premised on a complete 

misunderstanding of the relevant statutory 

provisions. There is no $117,000 aggregate 

contribution limit. Rather, FECA establishes 

separate aggregate limits for contributions to 

candidates, 2 U.S.C. § 441a(a)(3)(A), and for 

contributions to non-candidate entities, 2 U.S.C. § 

441a(a)(3)(B). See McCutcheon, slip op. at 2 (noting 

that statute comprises “a set of aggregate limits” and 
App-101 

differentiating it from prior version, which contained 

a single aggregate limit). Plaintiff cites no authority 

of any kind to support her tacit assumption that the 

Constitution prohibits Congress from establishing 

these limits separately. 

More specifically, there is no case law 

remotely suggesting that the First Amendment 

requires the total aggregate limit for contributions to 

all entities to be the same as the aggregate limit for 

direct contributions to candidates. To the contrary, 

McCutcheon’s holding that the aggregate limits are 

constitutional anti-circumvention measures, slip op. 

at 9-10, rejected challenges to each of the aggregate 

limits, including the McCutcheon plaintiffs’ explicit 

challenge to the aggregate limit on candidate 

contributions (separate and apart from their 

challenge to the non-candidate limit). See 

McCutcheon, slip op. at 4 (noting McCutcheon’s 

allegation that his intended contributions “would 

amount to aggregate candidate contributions of 

$54,400, and [non-candidate] contributions of 

$75,000”) (emphasis added);6 see also McCutcheon v. 

FEC, Civ. No. 12-1034, Compl. ¶¶ 121-142 (D.D.C. 

June 22, 2012) (devoting two counts of five-count 

complaint to challenging aggregate limit on 

contributions to candidates). Plaintiff’s attempt to 

 

6 As this quotation indicates, plaintiff’s statement (Pl.’s Show 

Cause Br. at 7) that McCutcheon “makes no mention of the 

specific contributions the parties wished to make” is incorrect. 

See also McCutcheon, slip op. at 4 (“[McCutcheon] wants to 

contribute $1,776 to twelve other candidates and enough 

money to the RNC, NRSC, and NRCC to bring his total 

contributions up to $25,000 each.”). 
App-102 

avoid that holding by recharacterizing it as 

addressing only a non-existent $117,000 limit has no 

basis in either the Court’s opinion or the pleadings 

that led to it. 

Moreover, the fundamental import of 

plaintiff’s argument is that the limit of $46,200 on 

contributions to candidates is simply too low in 

comparison to (or when combined with) the $70,800 

limit on other contributions. That claim cannot 

survive McCutcheon, in which this Court declined to 

second-guess Congress’s judgment as to the exact 

dollar amount of each aggregate limit. See 

McCutcheon, slip op. at 11 (refusing to impute 

constitutional significance to plaintiffs’ “argu[ment] 

that if an individual wanted to contribute equally to 

one candidate . . . in all 468 federal races . . . , he 

would be limited to contributing $85.29 per 

candidate”) (internal quotation marks omitted). And 

like the individual plaintiff in McCutcheon, Ms. 

James remains free to “to volunteer, join political 

associations, and engage in independent 

expenditures,” id. at 12 (citing Wagner v. FEC, Civ. 

No. 11-1841, 2012 WL 1255145, at *9 (D.D.C. Apr. 

16, 2012)), to further “associate one-on-one with 

candidates” as she desires (Pl.’s Show Cause Br. at 

10).7 All of these holdings necessarily control 

 

7 The Court’s observation that contribution limits leave 

contributors free to support candidates in other ways is 

particularly applicable to plaintiff, who has given over $1 

million during this election cycle to finance independent 

advocacy for or against candidates. See supra p. 2; see also 

Buckley, 424 U.S. at 21-22 (noting that contribution limits 

leave contributors free to “discuss candidates and issues” or 
App-103 

plaintiff’s novel attempt to conflate FECA’s 

aggregate limits: She cannot prevail without 

demonstrating the unconstitutionality of either the 

existence or size of the aggregate limit on 

contributions to candidates specifically, and 

McCutcheon upheld that limit in both respects. 

Plaintiff’s final and equally meritless 

argument is that her complaint cannot be foreclosed 

by McCutcheon because this case has been styled an 

“as-applied” challenge. (See Pl.’s Show Cause Br. at 

5-8.) As a general matter, plaintiff is correct that a 

decision upholding a statute on its face does not 

necessary foreclose subsequent as-applied 

challenges. See Wis. Right to Life Inc. v. FEC, 546 

U.S. 410 (2006) (per curiam). But as another threejudge court in this District has noted in rejecting the 

same preclusion-avoidance argument plaintiff raises 

here: 

In general, a plaintiff cannot 

successfully bring an as-applied 

challenge to a statutory provision based 

on the same factual and legal 

arguments the Supreme Court 

expressly considered when rejecting a 

facial challenge to that provision. Doing 

so is not so much an as-applied 

challenge as it is an argument for 

overruling a precedent. 

 

“become a member of any political association and to assist 

personally in the association’s efforts on behalf of candidates”). 
App-104 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 

150, 157 (D.D.C.) (three-judge court), aff’d mem., 130 

S. Ct. 3544 (2010). Because Ms. James desires to 

contribute to candidates more than twice what Mr. 

McCutcheon had wished to contribute — $117,000 

versus $54,400 — this Court’s rejection of Mr. 

McCutcheon’s challenge to this aggregate limit 

necessarily precludes her more ambitious request. 

The reasoning of Republican National Committee

thus applies with full force: Plaintiff’s “as-applied” 

challenge cannot succeed without the Supreme 

Court overruling Buckley and this Court overruling 

McCutcheon. Because the former is impossible here 

and plaintiff provides no basis for the latter, her 

claim is foreclosed. 

* * * 

“Having been taught the hard lesson of 

circumvention by the entire history of campaign 

finance regulation,” Congress has the power to 

“[p]revent[ ] corrupting activity from shifting” to 

take advantage of gaps in the statutory regime. 

McConnell v. FEC, 540 U.S. 93, 165-66 (2003). 

“Circumvention, after all, can be ‘very hard to 

trace.’” McCutcheon, slip op. at 9 (quoting Colo. 

Republican, 533 U.S. 431, 462 (2001)). Thus, 

Congress must have “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. The 

aggregate limit on contributions to candidates 

protects that integrity while leaving contributors 

free to “discuss candidates and issues” or “become a 
App-105 

member of any political association and to assist 

personally in the association’s efforts on behalf of 

candidates,” Buckley, 424 U.S. at 21-22, or “to 

volunteer, join political associations, and engage in 

independent expenditures.” McCutcheon, slip op. at 

12 (citing Wagner v. FEC, Civ. No. 11-1841, 2012 

WL 1255145, at *9 (D.D.C. Apr. 16, 2012)). The role 

the aggregate limit plays within this “coherent 

system” of regulation, id. at 10, is therefore 

constitutional because of “the need to prevent 

circumvention of the entire scheme,” McConnell, 540 

U.S. at 171-72, and “evasion of the base limits.” 

McCutcheon, slip op. at 9. 

CONCLUSION 

For the foregoing reasons, the Court should hold 

that this case is controlled by Buckley and 

McCutcheon. 

Respectfully submitted,

Anthony Herman (D.C. Bar No. 424643)

General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel – Law

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

/s/ Adav Noti

Adav Noti (D.C. Bar No. 490714) 

 [SIGNATURE BLOCK OMITTED IN APPX.] 

October 22, 2012