No.12-536 

In the 

Supreme Court of the United States 

SHAUN MCCUTCHEON, ET AL., 

 

 Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 

 Appellee. 

On Appeal from the United States District Court 

for the District of Columbia 

____________________________ 

 

BRIEF OF AMICUS CURIAE 

CENTER FOR COMPETITIVE POLITICS 

IN SUPPORT OF APPELLANTS 

 ALLEN DICKERSON

 Counsel of Record 

 ZAC MORGAN

 DAVID SILVERS

 ANNE MARIE MACKIN

 Center for Competitive Politics 

 124 S. West Street, Suite 201 

 Alexandria, Virginia 22314 

 adickerson@campaignfreedom.org 

 (703) 894-6800

May 13, 2013 Counsel for Amicus Curiae 

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com
i 

TABLE OF CONTENTS 

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

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

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

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

I. This Court has consistently applied a 

rigorous standard in reviewing 

contribution limits, but has not 

consistently defined that standard ............ 4 

II. In applying this standard, the Court has 

implied that courts should defer to 

legislatures when reviewing contribution 

limits ........................................................... 5 

III. Where, as here, the government has 

neither justified its restriction nor 

demonstrated that it is closely drawn, 

deference to Congress is inconsistent with 

the required rigorous review of the 

challenged statute ...................................... 7 

IV. Moreover, if “rigorous standard of review” 

is to have meaning, even when presented 

with a legislative record, courts must 

undertake a probing analysis of that record 

rather than simply deferring to the 

legislature’s proffered or conclusory 

findings ..................................................... 11 
ii 

A. Deference to legislative determinations, 

especially where no record justifies 

doing so, risks incumbent selfprotection ............................................ 12 

B. Deference to legislative judgments may 

also rely upon a false premise: that 

legislators actually possess expertise 

concerning the regulation of campaign 

finance ................................................. 15 

CONCLUSION .............................................................. 17 

 
iii 

TABLE OF AUTHORITIES 

 

Cases 

 

Buckley v. Valeo, 

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

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981) .................................. 4, 7, 11

Davis v. FEC, 

554 U.S. 724 (2008) .......................................... 14 

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

551 U.S. 449 (2007) .......................................... 10

Greater New Orleans Broadcasting Ass’n v. United 

States, 

 527 U.S. 173 (1999) ............................................ 7 

McConnell v. FEC,

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

Nixon v. Shrink Mo. Gov’t PAC,

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

Randall v. Sorrell,

548 U.S. 230 (2006) .................................. passim 

Ognibene v. Parkes,

671 F.3d 174 (2d Cir. 2011) ............................... 6

Preston v. Leake,

660 F.3d 726 (4th Cir. 2011) .............................. 6
iv 

Libertarian Nat’l Comm. v. FEC, 

No. 1:11-cv-00562, 2013 U.S. Dist. 

 LEXIS 36729 (D.D.C. March 18, 2013) ....... 5, 10 

Wagner v. FEC,

854 F.Supp. 2d 83 (D.D.C. 2012) ....................... 6

Statutes and Regulations 

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

11 C.F.R. § 110.5 ........................................................ 4

 

Other Authorities

147 Cong. Rec. S. 2540 ............................................. 14 

147 Cong. Rec. S. 2542 ............................................. 14 

147 Cong. Rec. S. 3028 ............................................... 9 

147 Cong. Rec. S. 3090 ............................................... 9 

148 Cong. Rec. S. 2131 ............................................. 14 

148 Cong. Rec. S. 2132 ............................................. 14 

148 Cong. Rec. S. 2154 ............................................... 9 

Robert F. Bauer, 

When ‘The Pols Make the Calls’: McConnell’s 

Theory of Judicial Deference in the Twilight of 

Buckley, 153 U. PENN. L. REV. 5 (2004) ........... 13 
v 

Lillian BeVier, 

Not Senator Buckley’s First Amendment, 

3 ELECTION L.J. 127 (2004) .............................. 16 

Bradley A. Smith, 

 McConnell v. FEC: Ideology Trumps Reality, 

 3 ELECTION L.J. 345 (2004) .............................. 15 

Jennifer Yachinin, 

House Admin Requests BCRA Symposium, 

ROLL CALL, Oct. 20, 2003 ................................. 15 

Woe Is Them, THE WALL STREET JOURNAL, 

Feb. 20, 2003 at A12 ........................................ 16 
1 

INTEREST OF AMICUS CURIAE1 

 

 Founded in 2005 by former Federal Election 

Commission Chairman Bradley Smith, the Center 

for Competitive Politics (“CCP”) is a 501(c)(3) 

organization that seeks to educate the public about 

the effects of money in politics, and the benefits of 

increased freedom and competition in the electoral 

process. CCP works to defend the First Amendment 

rights of speech, assembly, and petition through 

scholarly research and both state and federal 

litigation. 

Amicus has participated in many of the 

notable cases concerning campaign finance laws and 

restrictions on political speech, including Citizens 

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

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 

2010). Amicus also represents the plaintiff-appellant 

in James v. FEC, No. 12-683, a challenge to 2 U.S.C. 

§441a(a)’s limitation on the contribution of funds 

directly to candidates that may, under the statute, 

lawfully be contributed to parties and political 

committees. 

 

 

1 No party has contributed, monetarily or otherwise, to the 

preparation or filing of this brief, which was authored entirely 

by counsel for amicus. Copies of the consents of all parties to 

the filing of this brief are filed with the Clerk of this Court. 
2 

SUMMARY OF ARGUMENT 

 

The district court’s decision to uphold the 

aggregate individual contribution limits of the 

Bipartisan Campaign Reform Act (“BCRA”), codified 

at 2 U.S.C. § 441a(a), did not reflect the exacting 

review demanded by the First Amendment interests 

implicated here. Even if the court were correct in 

declining to apply strict scrutiny, contribution limits 

must still be “closely drawn to match a sufficiently 

important interest.” McConnell v. FEC, 540 U.S. 93, 

136 (2003). While noting this standard, the district 

court failed to adequately apply it. 

This error stems, in part, from confusion over 

the proper standard of review for contribution limits. 

In particular, the tailoring prong of such analysis 

has often been replaced by deference to legislators’ 

“particular expertise” regarding “the cost and nature 

of running for office.” Randall v. Sorrell, 548 U.S. 

230, 248 (quoting McConnell, 540 U.S. at 137). 

Such deference is mistaken in this case, and 

should be reconsidered generally. Where, as here, 

the Congress failed to generate any substantive 

record to justify its legislative approach, the 

rationale for judicial deference collapses. Moreover, 

such deference substantially increases the likelihood 

that legislative action will disproportionately serve 

the interests of incumbent politicians. Finally, the 

premise undergirding deference to legislative 

pronouncements in this area – that legislators 

actually possess expertise in the area of campaign 

finance – may be fundamentally mistaken. 

Contribution limits implicate “the most 

fundamental” First Amendment interests. Buckley v. 
3 

Valeo, 424 U.S. 1, 14 (1976). This Court has 

consequently demanded that they be subjected to 

heightened judicial scrutiny. Deference to the 

Congress, especially in the absence of any relevant 

legislative record, is inconsistent with that 

requirement and fails to adequately safeguard the 

First Amendment’s guarantees. 

 

 

 

 
4 

ARGUMENT 

 

I. This Court has consistently applied a 

rigorous standard in reviewing 

contribution limits, but has not 

consistently defined that standard. 

Appellants have brought a challenge to, inter 

alia, the aggregate individual contribution limits of 

the Bipartisan Campaign Reform Act (“BCRA”), 

codified at 2 U.S.C. § 441a(a); 11 C.F.R. 110.5 (2013). 

The district court’s decision to uphold the aggregate 

individual limit did not reflect the exacting review 

demanded by the First Amendment interests 

implicated here. But that error can be explained, in 

part, by the lack of clear guidance from this Court, 

which can be corrected here. 

Since Buckley v. Valeo, this Court has 

required that contribution limits must be “closely 

drawn to avoid unnecessary abridgement of 

associational freedoms.” 424 U.S. 1, 25 (1976) 

(internal citations omitted). Consistently, this Court 

has determined that a “rigorous standard of review” 

must be applied to determine if such limits are 

appropriately drawn. Buckley, 424 U.S. at 29. 

However, the Court has not consistently 

defined the contours of this rigorous standard. At 

times, it has analyzed contribution limits under 

“exacting judicial scrutiny.” Citizens Against Rent 

Control v. City of Berkeley, 454 U.S. 290, 298 (1981). 

In other decisions, such as its consideration of the 

contribution limits imposed by the state of Missouri, 

it has applied “heightened judicial scrutiny.” Nixon 

v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000). 
5 

And other courts have “held that the standard to 

apply to contribution limits is akin to intermediate 

scrutiny.” Libertarian Nat’l Comm. v. FEC, No. 1:11-

cv-00562, 2013 U.S. Dist. LEXIS 36729, at *25 

(D.D.C. March 18, 2013) (citing SpeechNow.org v. 

FEC, 599 F.3d 686, 692 (D.C. Cir. 2010); Republican 

Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 156 

(D.D.C. 2010)). 

What is clear is that there is a requirement of 

heightened scrutiny and, like strict scrutiny, the 

scrutiny applied to contribution limits proceeds in 

two steps. First, the government must show a 

sufficiently important governmental interest to 

justify infringements on the First Amendment. 

Buckley, 424 U.S. at 25. Second, it must choose 

means “closely drawn” to that interest. Id. But the 

tailoring prong of this analysis remains a source of 

confusion. 

In Shrink Missouri, the Court itself 

recognized this lack of a uniform rule. In 

determining if a contribution limit is closely drawn, 

“[t]he quantum of empirical evidence needed to 

satisfy heightened judicial scrutiny of legislation will 

vary up or down with the novelty and plausibility of 

the justification raised.” Shrink, 528 U.S. at 391. 

II. In applying this standard, the Court has 

implied that courts should defer to 

legislatures when reviewing contribution 

limits. 

 

The Court has held that, generally, proper 

application of this amorphous standard requires 

some “defer[ence] to the legislature[].” Randall v. 
6 

Sorrell, 548 U.S. 230, 248. Legislators have 

“particular expertise” regarding “the cost and nature 

of running for office.” Id. (quoting McConnell v. FEC, 

540 U.S. 93, 137 (2003)). Given this perceived 

competency of legislative bodies, the Court has 

declined to wholly substitute its judgment for that of 

Congress or the state legislatures. Thus, “[t]he 

judiciary owes special deference to legislative 

determinations regarding campaign contribution 

restrictions.” Ognibene v. Parkes, 671 F.3d 174, 182 

(2d Cir. 2011). 

In the contribution context, the lower courts 

have “emphasized that it is for the legislature—not 

the courts—to determine how to appropriately 

address corruption.”Wagner v. FEC, 854 F. Supp. 2d 

83, 92 (D.D.C. 2012). The Fourth Circuit Court of 

Appeals recently noted that deference to “important 

and...legitimate judgment[s]” is appropriate, 

“especially where corruption is the evil feared.” 

Preston v. Leake, 660 F.3d 726, 736 (4th Cir. 2011) 

(internal citations and quotation marks omitted). 

But this deference does not extinguish the 

tailoring required to satisfy heightened scrutiny. 

This Court has foresworn “accept[ing] mere 

conjecture as adequate to carry a First Amendment 

burden.” Shrink, 528 U.S. at 392. The government 

may not prevail on the basis of hypothetical danger. 

“The Court’s decisions involving associational 

freedoms establish that the right of association is a 

basic constitutional freedom...[which] lies at the 

foundation of a free society.” Buckley, 424 U.S. at 25 

(internal citations and quotations omitted). Indeed, 

even when dealing with speech lying further from 

the core of the First Amendment than political 
7 

speech, this Court has demanded that the 

government demonstrate that “the harms it recites 

are real and that its restriction will in fact alleviate 

them to some degree.” Greater New Orleans 

Broadcasting Ass’n. v. United States, 527 U.S. 173, 

188 (1999). Restricting First Amendment freedoms 

necessarily requires the government to concretely 

explain why it has the right to do so, and that its 

means for doing so are “closely drawn.” 

In Citizens Against Rent Control, Justice 

Marshall explained the requirements of heighted 

scrutiny. In order for the government to succeed, 

“the record...[must] disclose sufficient evidence to 

justify the conclusion that” contributions in excess of 

present limits would “undermine[] the confidence of 

the citizenry in government.” Citizens Against Rent 

Control, 454 U.S. at 301 (Marshall, J., concurring). 

Without such evidence, the justification for deference 

to the legislature dissolves. 

III. Where, as here, the government has 

neither justified its restriction nor 

demonstrated that it is closely drawn, 

deference to Congress is inconsistent with 

the required rigorous review of the 

challenged statute. 

In this case, no record exists. Neither the 

lower court nor the FEC offered any evidence 

supporting the contention that the individual 

aggregate limits address either corruption or a 

credible threat of circumvention. 

Indeed, the McCutcheon panel largely relied 

on the very sort of “mere conjecture” that the Shrink 
8 

Missouri Court rejected. The lower court presented a 

hypothetical scenario, whereby joint fundraising 

committees could serve as a means for corruption-byconduit. McCutcheon v. FEC, No, 1:12-cv-01034, slip 

op. at 9 (D.D.C. Sept. 28, 2012). But the court itself 

noted that “it may seem unlikely that so many 

separate entities would willingly serve as conduits 

for a single contributor’s interests.” McCutcheon at 

10. Despite its own skepticism, the lower court 

decided that because “it is not hard to imagine a 

situation where the parties implicitly agree to such a 

system,” it was forced to uphold the individual 

aggregate limits. Id. This is precisely the 

constitutionality-by-conjecture approach that this 

Court’s holdings have repeatedly disavowed. 

Nor did the district court rely on a legislative 

record substantiating the alleged risks of corruptionby-conduit. Despite extensive research, amicus could 

locate no record regarding any of the Bipartisan 

Campaign Reform Act’s aggregate limits. Amicus

reviewed all references to “aggregate limits” and all 

permutations of the phrase that appear in the 

Congressional Record for the 107th Congress. This 

review included statements on the House and Senate 

floors, and all relevant committee material. 

Based on this review of the public record, 

amicus submits that no member of Congress made 

any substantive representation as to the purpose of 

the aggregate limits. Indeed, most references to the 

aggregate limits in the Congressional Record consist 

of draft legislative text or statements which merely 

acknowledge the limits’ existence. See, e.g., 147 

Cong. Rec. S. 3028; 147 Cong. Rec. S. 3090. The 

current individual aggregate limit emerged from a 
9 

compromise brokered by Senator Dianne Feinstein of 

California and then-Senator Fred Thompson of 

Tennessee. 148 Cong. Rec. S. 2154. Neither senator 

devoted any time on the record to an explanation of 

the anti-corruption or anti-circumvention rationale 

of an aggregate limit on individual contributions. Id. 

Nor did any committee take testimony or assemble 

evidence on this point. 

It may be that Congress felt little need to 

substantiate the necessity of the aggregate limits in 

light of Buckley’s determination that aggregate 

limits are “no more than a corollary of the basic 

individual contribution limitation.” Buckley, 424 

U.S. at 38. But Buckley’s statement arose in a 

substantially different statutory context: in 1976, it 

was possible for an individual to circumvent FECA’s 

$1,000-per-candidate contribution limit “by 

contributing up to $5,000 in unearmarked funds to 

as many [political] committees as he wished, which 

in turn could have re-contributed those funds to a 

particular candidate.” McCutcheon Open. Br. at 4.

Moreover, Buckley upheld an overall cap on 

giving—not a system where the government both 

limits the total amount any individual may 

contribute and further directs that overall giving via 

caps on contributions to PACs, parties, and 

candidates. Under FECA, an individual could 

contribute $25,000 to candidates, $25,000 to 

committees, or a mixture of her choosing. That 

ability to divide aggregate contributions among 

entities of an individual contributor’s choosing no 

longer exists, and Congress left no discussion on the 

record as to how BCRA’s novel scheme fights 

corruption. 
10 

Ignoring these changes, and failing to cite to 

any legislative or judicial record, the district court 

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

legislative judgment about what limits to impose.” 

McCutcheon at 10 (internal citation omitted). In 

doing so, the lower court engages in no more than 

the application of a soft, rational basis review—not 

the rigorous, heightened scrutiny required by this 

Court’s precedents. Leaving the lower court’s ruling 

in place would implicitly overturn Buckley’s holding 

that contribution limits must be closely drawn. In 

fact, leaving McCutcheon undisturbed will permit 

the government to prevail by merely asserting 

constitutionality.2

 In light of the “scant evidence” to support 

Congress’s judgment, the lower court exercised an 

inappropriate level of deference. See McConnell, 540 

U.S. at 232. Reliance upon the “mere conjecture” 

 

2 In another case presently before the D.C. District Court, the 

FEC claims that court committed clear error by certifying a 

question to the en banc Court of Appeals under the procedure 

established by 2 U.S.C. § 437(h). See Libertarian Nat’l Comm. 

v. FEC, No. 1:11-cv-00562, 2013 U.S. Dist. LEXIS 36729 

(D.D.C. March 18, 2013). The FEC’s argument rests on the 

notion that as-applied challenges threaten “the interest in 

maintaining clear, bright-line prophylactic rules.” FEC Mot. to 

Alt. at 12. Moreover, the Commission argued that the district 

court’s mere consideration of less-restrictive means, as part of a 

tailoring analysis under exacting scrutiny, was too similar to 

strict scrutiny, and consequently also clear error. FEC Mot. to 

Alt. at 16. But “a prophylaxis-upon-prophylaxis approach to 

regulating expression is not consistent with strict scrutiny.” 

FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 479 (2007) 

(controlling opinion). Nor, we suggest, is it compatible with the 

exacting scrutiny demanded by this Court in the realm of 

contribution limitations.
11 

that unlimited individual aggregate contributions to 

candidates may be harmful is not the “rigorous 

standard of review” demanded by Buckley and its 

progeny. This Court has regularly relied on a “record 

or legislative findings” to determine whether or not a 

contribution limit passes constitutional muster. 

Citizens Against Rent Control, 454 U.S. at 302 

(Blackmun, J., concurring). While “[t]he quantum of 

empirical evidence needed [from such a record]...will 

vary,” what has been presented to this Court is 

wholly “[in]adequate to carry a First Amendment 

burden.” Shrink, 528 U.S. at 392. This Court’s 

review of the individual aggregate contribution limit, 

like all contribution limits, must be rigorous and 

searching, and not simply an unconditional 

deference to a legislative decision made without 

evidence or deliberation. 

IV. Moreover, if “rigorous standard of review” 

is to have meaning, even when presented 

with a legislative record, courts must 

undertake a probing analysis of that record 

rather than simply deferring to the 

legislature’s proffered or conclusory 

findings. 

 

Without a record, the district court 

nonetheless stated that it is “not the judicial role to 

parse legislative judgment about what [contribution] 

limits to impose.” McCutcheon at 10 (citing Randall, 

548 U.S. at 248 (internal citations and quotations 

omitted)). While this Court has “ordinarily...deferred 

to the legislature’s determination of such matters,” 

such deference to expertise must, in the context of 
12 

heightened scrutiny, have some basis. Randall, 548 

U.S. at 248. Courts must demand evidence that the 

legislature’s expertise was actually used, and also 

that it was directed toward a constitutionallypermissible end. An established record is clearly 

necessary to such an inquiry. 

The absence of such a record poses two 

troubling possibilities. First, the legislature’s 

“particular expertise” may have been used to protect 

incumbents, a danger that justices of this Court and 

members of the 107th Congress have explicitly 

recognized. Second, in the case of campaign finance 

law, compelling evidence suggests that many – 

perhaps most – legislators have no actual expertise. 

Of course, these two options are not mutually 

exclusive. Some members of Congress may be 

conniving, and others ignorant. 

A. Deference to legislative determinations, 

especially where no record justifies doing 

so, risks incumbent self-protection. 

Members of Congress are returned to office on 

the basis of successful political campaigns, which “in 

the modern setting” necessarily “involve the 

expenditure of money.” Buckley, 424 U.S. at 11. 

Thus, members of Congress have a particular selfinterest in the regulation of campaign finance. This 

self-interest could conceivably lead legislators to 

design rules that protect their incumbency. As 

Robert Bauer, a noted campaign-finance attorney 

who served as General Counsel of Obama for 

America and as the President’s White House 

Counsel, has written: 
13 

The problem is not simply that, in a 

critique of their own involvement with 

political money, officeholders may be 

tempted to rig the game for their own 

purposes. There is also the fair 

possibility that, even if they do the 

best they can, their biases will taint, if 

not wholly disqualify, the effort. 

Robert F. Bauer, When ‘The Pols Make the Calls’: 

McConnell’s Theory of Judicial Deference in the 

Twilight of Buckley, 153 U. PENN. L. REV. 5, 18 

(2004). 

 This bias poses a threat to First Amendment 

interests. As this Court recognized in Randall, the 

danger that contribution limits could prevent 

candidates from “amassing the resources necessary 

for effective advocacy,” has a corollary. Because such 

limits are drafted by incumbents, they may “magnify 

the advantages of incumbency to the point where 

they put challengers to a significant disadvantage.” 

Randall, 548 U.S. at 248 (citing Buckley, 424 U.S. at 

21). Individual members of this Court have gone 

further. McConnell, 540 U.S. at 249 (Scalia, J., 

dissenting) (“as everyone knows, this is an area in 

which evenhandedness is not fairness...any

restriction upon a type of campaign speech that is 

equally available to challengers and incumbents 

tends to favor incumbents.”) (emphasis in original); 

Id. at 306 (Kennedy, J., dissenting) (“Title I’s 

entirety begins to look very much like an 

incumbency protection plan....The very nature of the 

restrictions imposed by these provisions makes one 
14 

all the more skeptical of the...explanation of the 

interests at stake.”). 

Such concerns are not misplaced. While no 

substantial legislative record justifies BCRA’s 

aggregate contribution provisions, BCRA as a whole 

was heavily debated. Many senators made 

statements noting that the overall effect of the law 

would be to protect incumbents from electoral 

challenges. See, e.g., 148 Cong. Rec. S. 2132 

(Statement of Senator Rick Santorum: “If you do not 

think this is an incumbent protection plan, I 

guarantee you have not been listening.”); 148 Cong. 

Rec. S. 2131 (Text of letter from Laura W. Murphy of 

the American Civil Liberties Union introduced into 

the record by Senator Mitch McConnell: “[BCRA 

will] protect incumbents....”). 

Indeed, a floor statement by Senator John 

McCain openly adopted a “defend the incumbents” 

rationale to justify the so-called Millionaire’s 

Amendment struck down by this Court in Davis v. 

FEC, 554 U.S. 724 (2008). 147 Cong. Rec. S. 2540 

(The amendment “addresses, in all candor, a concern 

that virtually any nonmillionaire Member of this 

body has”—namely, being challenged by a deeppocketed citizen.) In response, Senator Chris Dodd 

demurred that “this is what I would call incumbency 

protection.” 147 Cong. Rec. S. 2542. 

The danger that legislators will protect their 

own jobs, intentionally or otherwise, is insufficient 

standing alone to invalidate campaign-finance 

regulations. But it is enough to show that legislative 

pronouncements must not be taken at face value. 
15 

B. Deference to legislative judgments may 

also rely upon a false premise: that 

legislators actually possess expertise 

concerning the regulation of campaign 

finance. 

 Deference to legislative expertise is 

inappropriate where there is little expertise to defer 

to. Members of Congress have often shown 

considerable ignorance of the nation’s campaign 

finance laws. For example, in October 2003, less 

than one year after the effective date of BCRA, the 

House Administration Committee (which has 

jurisdiction over campaign finance laws) formally 

requested that the FEC provide training sessions for 

representatives. Jennifer Yachinin, House Admin 

Requests BCRA Symposium, ROLL CALL, Oct. 20, 

2003. The committee’s ranking minority member, 

who supported the request, was apparently unaware 

that BCRA had already gone into effect, “unwittingly 

demonstrat[ing] the need for such a seminar.” Id. 

Such ignorance is not surprising given that 

“members of Congress...do not actually manage their 

own campaigns and usually have little experience 

working in the party structure or with the types of 

citizen groups affect by...[BCRA].” Bradley A. Smith, 

McConnell v. FEC: Ideology Trumps Reality, 3

ELECTION L.J. 345, 349 (2004). As a result, most 

members “may actually have very little 

understanding of how provisions of the law might 

work” despite enthusiastically supporting it. Id.

After teaching a “McCain-Feingold school” for 

Democrats, a party which overwhelmingly supported 
16 

BCRA,3 Robert Bauer noted that the lessons 

“sometimes leave...[congressional] audiences in a 

state of complete shock.” Woe Is Them, THE WALL 

STREET JOURNAL, Feb. 20, 2003 at A12. 

Courts ought not, and consistent with 

exacting scrutiny cannot, presume legislative 

expertise absent a rigorous examination of a serious 

record. Further, if heightened scrutiny is to be 

meaningful, the Court’s examination must do more 

than rely on self-interested assertions as truth and 

newspaper editorials as fact. See Lillian BeVier, Not 

Senator Buckley’s First Amendment, 3 ELECTION 

L.J. 127 (2004); see also McConnell at 271 n. 3 

(Thomas, J., concurring in part and dissenting in 

part) (“...the principal contents of Senator McCain’s 

declaration are his complaints that several bills he 

supported were defeated...[t]he possibility that his 

favored policy outcomes lose due to lack of public 

support, or because the opponents of the amendment 

honestly believed it would do harm to the public, 

does not appear to be addressed.”). 

 On this record and on these facts, there is “no 

alternative to the exercise of independent judicial 

judgment” concerning the individual aggregate 

limits. Randall, 548 U.S. at 249. But the point is 

broader. Regulation of campaign contributions 

implicates important First Amendment interests, 

and is consequently subject to exacting scrutiny. 

Such scrutiny requires that the means chosen be 

 

3 The Senate roll call for BCRA is available at: 

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vo

te_cfm.cfm?congress=107&session=2&vote=00054. The House 

roll call for BCRA is available at: 

http://clerk.house.gov/evs/2002/roll034.xml. 
17 

reasonably tailored to the ends desired. As the lower 

court’s decision shows, over the years this Court’s 

required level of scrutiny has become “rigorous” in 

theory, but wholly deferential in fact. Mere deference 

to legislatures, especially given the concerns outlined 

above, is inconsistent with the judiciary’s duty to 

independently, and carefully, probe the record for 

evidence supporting legislative judgments. 

 

CONCLUSION 

 

 For the foregoing reasons, the Court should 

reverse the decision of the district court. 

 

Dated: May 13, 2013 

Respectfully Submitted, 

ALLEN DICKERSON

 Counsel of Record 

CENTER FOR COMPETITIVE

POLITICS

124 S. West St., Suite 201 

Alexandria, Virginia 22314 

adickerson@campaignfreedom.org 

Telephone: (703) 894-6800