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 

Cause of Action Institute 

As Amicus Curiae Supporting Appellants

BARNABY W. ZALL

Counsel of Record

Weinberg, Jacobs 

 & Tolani, LLP

7018 Tilden Lane Daniel Z. Epstein

Rockville, MD 20852 Hallee Morgan 

(301) 231-6943 Justin Meyers

bzall@bzall.com Marie Connelly

Robyn Burrows

Karen Groen

CAUSE OF ACTION 

 INSTITUTE

1919 Pennsylvania Ave.,

 N.W.

Washington, D.C. 20006
- i -

QUESTIONS PRESENTED 

Appellants present five questions: 

1. Whether the biennial limit on contributions to 

non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), 

is unconstitutional for lacking a constitutionally 

cognizable interest as applied to contributions to 

national-party committees. 

2. Whether the biennial limits on contributions to 

non-candidate committees, 2 U.S.C. § 441a(a) (3)(B), 

are unconstitutional facially for lacking a 

constitutionally cognizable interest. 

3. Whether the biennial limits on contributions to 

non-candidate committees are unconstitutionally too 

low, as applied and facially. 

4. Whether the biennial limit on contributions to 

candidate committees, 2 U.S.C. § 441a(a)(3)(A), is 

unconstitutional for lacking a constitutionally 

cognizable interest. 

5. Whether the biennial limit on contributions to 

candidate committees, 2 U.S.C. § 441a(a)(3)(A), is 

unconstitutionally too low.
- ii -

TABLE OF CONTENTS 

 

Questions Presented ................................................... i

Table of Contents ...................................................... ii

Table of Authorities ................................................. iv

Statement of Interest .................................................1

Statement of Context..................................................3

Summary of Argument ..............................................7

Argument.....................................................................9

I. The Aggregate Limits Are Not Narrowly 

Tailored to the Government’s Interest in 

Avoiding Circumvention of the Individual 

Contribution Limits........................................11

A. The Aggregate Limits Are No Longer 

Needed Because “Fully Disclosed” Means 

Something Different Now Than in 1974 .11

1. In 1974, Information About Candidates 

and Donors Was Not Easily Accessible ..12

2. Today, Information About Candidates 

and Donors Is Readily Available .............17
- iii -

B. The New Freedom to Make “Independent 

Expenditures” Has Removed the Major 

Incentive to Circumvent the Individual 

Limits ........................................................24

C. The Major Effect of the Aggregate Limits 

in a Smartphone Era Is an Impermissible 

“Leveling” of Speech..................................30

Conclusion ................................................................35
- iv -

TABLE OF AUTHORITIES 

Arizona Free Enter. Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806 (2011) ..........................31

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

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) 

(en banc), aff’d in part, rev’d in part, 

424 U.S. 1 (1976)..................................................13

Bullock v. Carter, 405 U.S. 134 (1972).....................34

Cause of Action v. Nat’l Archives & Records Admin., 

No. 12-1342, 2013 U.S. Dist. LEXIS 28725 

(D.D.C. Mar. 1, 2013).............................................1

Citizens United v. Federal Election Commission,

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

Connally v. General Constr. Co., 

269 U. S. 385 (1926).............................................25

Doe v. Reed, 130 S.Ct. 2011 (2010).............................5

Federal Election Commission v. Beaumont, 

539 U.S. 146 (2003)..............................................26

Federal Election Commission v. Mass. Citizens for 

Life, Inc., 479 U.S. 238 (1986).......................25, 26

Federal Election Commission v. Nat'l Right to Work 

Comm., 459 U.S. 197 (1982)................................14
- v -

First National Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)..............................................14

McConnell v. FEC, 

540 U.S. 93 (2003)................................................33

Meyer v. Grant, 486 U.S. 414 (1988)........................25

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

.......................................................10, 11, 23, 34

Roth v. United States, 354 U.S. 476 (1957) ...............9

SpeechNow.org v. Federal Elections Commission, 

599 F.3d 686 (D.C.Cir.2010)..........................25, 28

U.S. v. Whittemore, No. 12–CR–0058, 2013 U.S. 

Dist. LEXIS 57198 (D. Nev. Apr. 18, 2013) ..........9

Statutes

Federal Election Campaign Act Amendments of 

1974, Pub. L. 93-443, 88 Stat. 1263 ....................14

Federal Corrupt Practices Act of 1925 (Title III of 

the Act of Feb. 28, 1925), 43 Stat. 1070 ..............14

Federal Election Campaign Act of 1971, 

92 P.L. 225; 86 Stat. 3 (1972)......13, 14, 15, 21, 23 

2 U.S.C. § 441a(a)(3) (2012)......................................15

5 U.S.C. §§ 552, et seq.................................................1
- vi -

26 U.S.C. § 6104(d)(3) .............................................27

Books and Articles 

Bill Allison, Daily Disclosures, Sunlight Found. (Oct. 

18, 2013, 12:43 PM), 

http://sunlightfoundation.com/blog/2010/10/18/dai

ly-disclosures-10/ .................................................26

Paul Atkins, SEC Should Reject Partisan Ploy, 

USATODAY, May 1, 2013, 

http://www.usatoday.com/story/opinion/2013/05/0

1/sec-political-donations-disclosure-ruleeditorials-debates/2128009/.................................32

Joseph M. Birkenstock, Three Can Keep a Secret, If 

Two of Them Are Dead: A Thought Experiment 

Around Compelled Public Disclosure of 

“Anonymous” Political Expenditures, 27 J.L. &

POLITICS 609 (2012) .............................................27

Paul Blumenthal, ‘Dark Money’ in 2012 Election 

Tops $400 Million, HUFFINGTON POST (Nov. 2, 

2012), 

http://www.huffingtonpost.com/2012/11/02/darkmoney-2012-election-400-

million_n_2065689.html......................................26

Center for Responsive Politics, 2012 Spending Will 

Reach $6 Billion, Open Secrets Blog 

(Oct. 31, 2012)

http://www.opensecrets.org/news/2012/10/2012-

election-spending-will-reach-6.html ...................26
- vii -

Center for Responsive Politics, Reelection Rates 

Over the Years, OpenSecrets.org, 

http://www.opensecrets.org/bigpicture/reelect.php

........................................................................ 33

Current Issues in Campaign Finance Law 

Enforcement: Hearing Before the Subcomm. On 

Crime and Terrorism, S. Comm. On the Judiciary

113 Cong. 3 (2013) (statement of Mythili Raman, 

Acting Assistant Att’y Gen., Criminal Div.)

available at

http://www.judiciary.senate.gov/pdf/4-09-

13RamanTestimony.pdf ..............................passim

Yasmin Dawood, Electoral Fairness and the Law of 

Democracy, 62 U. Toronto L.J. 499 (2012) .........33

Katie Denshaw, Social media becoming crucial 

political tool, PHILADELPHIA INQUIRER, April 26, 

2013, http://articles.philly.com/2013-04-

06/news/38329744_1_social-media-presidentobama-mitt-romney .............................................18

Tim Dickinson, “How President Obama Won A 

Second Term,” ROLLING STONE, Nov. 23, 2012,

http://www.rollingstone.com/politics/news/howpresident-obama-won-a-second-term20121123#ixzz2QdnM5cjL ..................................29

E.J. Dionne, Jr., “Fighting big money with big 

money,” WASH. POST, Mar. 27, 2013, 

http://www.washingtonpost.com/opinions/ejdionne-michael-bloomberg-and-fighting-moneywith-money/2013/03/27/54fa52d4-96f5-11e2-b68fdc5c4b47e519_story.html ....................................29
- viii -

Tom Donnelly, Candidate Venture Capital, 80 U. 

CIN. L. REV. 753 (Spring 2012).....................22, 33

Sasha Eisenberg, How President Obama’s campaign 

used big data to rally individual voters, MIT

TECH. REV. (Dec. 16, 2012), 

http://www.technologyreview.com/featuredstory/5

08836/how-obama-used-big-data-to-rally-voterspart-1/.....................................................................7

Federal Election Commission, Advisory Opinion 

2010-11 (Commonsense Ten), available at

http://saos.nictusa.com/aodocs/

AO%202010-11.pdf ..............................................28

Federal Election Commission, First Ten Years 

Report (1985), available at http://fec.gov/pdf/

firsttenyearsreport.pdf. ...........................12, 13, 15

Federal Election Commission, Performance and 

Accountability Report for FY 2012 (Nov. 15, 2012), 

http://www.fec.gov/pages/budget/fy2012/FEC_PA

R_FY_2012-Final.pdf...........................................18

Federal Election Commission, Quick Answers to 

Disclosure Questions, 

www.fec.gov/ans/answers_disclosure.shtml (last 

visited Apr. 8, 2013).............................................17

Anthony J. Gaughan, The Futility of Contribution 

Limits in the Age of Super PACs, 60 DRAKE L.

REV. 755 (2012) ....................................................27
- ix -

Alana Goodman, Lobbying for Action: OFA Registers 

as lobbyist in NY despite anti-lobbyist positions,

WASH. FREE BEACON, Apr. 12, 2013, 

http://freebeacon.com/

lobbying-for-action/..............................................27

Pam Greenberg, Social Media: Becoming a Trusted 

Source for Political Information,” The Thicket at 

State Legislatures, Nat’l Conf. of State 

Legislatures, Feb. 6, 2013, 

http://ncsl.typepad.com/the_thicket/2013/02/social

-media-becoming-the-go-to-source-for-politicalinformation-.html. ............................................. 4

Billy Hallowell, Meet the 5 Biggest Donors to the 

Obama & Romney Campaigns, THE BLAZE (Oct. 

19, 2012), 

http://www.theblaze.com/stories/2012/10/19/meetthe-5-biggest-donors-to-the-obama-romneycampaigns/ ...........................................................22

Craig Holman and Robert Stern, Campaign Money 

on the Information Superhighway: Electronic 

Filing and Disclosure of Campaign Finance 

Reports, Ctr. for Governmental Studies

(Jan.1999), available at

http://policyarchive.org/handle/10207/bitstreams/

225.pdf................................................................. 22

Samuel Issacharoff and Pamela Karlan, The 

Hydraulics of Campaign Finance Reform, 77 TEX.

L. REV. 1705 (June 1999)....................................22

Robert Kahn and Vinton Cerf, Al Gore and the 

Internet, 
- x -

http://web.eecs.umich.edu/~fessler/misc/funny/gor

e,net.txt, last visited Apr. 23, 2013.......................3

Ezra Klein, We got way too excited over money in 

the 2012 elections, Wash. Post, May 6, 2013, 

http://www.washingtonpost.com/blogs/wonkblog/

wp/2013/05/06/we-got-way-too-excited-overmoney-in-the-2012-elections/ ..............................29

Tim Lockette, Alabama Campaign Finance Reports 

to Go Online, Anniston Star, May 4, 2013, 

http://www.annistonstar.com/view/full_story/2247

2052/article-Alabama-campaign-finance-reportssoon-to-go-online?instance=home_news .............16

Maureen ODanu, Social Media Becoming Major 

News Source for Journalists, Technorati, May 18, 

2011, http://technorati.com/socialmedia/article/social-media-becoming-major-newssource/ ..................................................................18

Kathleen Parker, Beauty & the Beast, Wash. Post, 

Apr. 12, 2013, 

http://www.washingtonpost.com/opinions/kathlee

n-parker-ashley-judd-and-roughpolitics/2013/04/12/2dd331f6-a3a9-11e2-9c03-

6952ff305f35_story.html........................................5

James L. Regens & Ronald Keith Gaddle, THE 

ECONOMIC REALITIES OF POLITICAL REFORM:

ELECTIONS & THE U.S. SENATE (1995) ................13

John Francis Reilly & Barbara A. Braig Allen,

Political Campaign and Lobbying Activities of 

IRC 501(c)(4), (c)(5), and (c)(6) Organizations, 
- xi -

(2003), available at http://www.irs.gov/pub/irstege/eotopicl03.pdf. ..............................................27

SELECT COMM. ON PRESIDENTIAL CAMPAIGN 

ACTIVITIES, FINAL REPORT, S. REP. NO. 93-981 

(1974)....................................................................13

Kathleen Sullivan, Comment, Two Concepts of 

Freedom of Speech, 124 HARV. L. REV. 143 (Nov. 

2010).....................................................................15

Kathleen Sullivan, Against Campaign Finance 

Reform, 1998 UTAH L. REV. 311 ..........................21

Paul J. Weber, Perry remembered as titan of 

spending, Associated Press, Wash. Times, Apr.16, 

2013 ................................................................23, 31 

Rachel Weiner, Scott Prouty reveals himself as man 

who shot ’47 percent’ video, Wash. Post, Mar. 13, 

2013, http://www.washingtonpost.com/blogs/postpolitics/wp/2013/03/13/scott-prouty-revealshimself-as-man-who-shot-47-percentvideo/ ....................................................................21

Fred Wertheimer, A Challenge to President Obama’s 

New 501(c)(4) Group, Huffington Post (Jan. 29, 

2013, 5:23 PM), 

http://www.huffingtonpost.com/fredwertheimer/a-challenge-to-president-

_b_2569105.html................................................. 27

Chris Young, Reity O’Brien & Andrea Fuller, 

Corporations, pro-business nonprofits foot bill for 

judicial seminars, Ctr. for Pub. Integrity:
- xii -

Consider the Source, Mar. 28, 2013, 

http://www.publicintegrity.org/2013/03/28/12368/c

orporations-pro-business-nonprofits-foot-billjudicial-seminars ...................................................5

Other Authorities

American Bridge 21st Century,

Who We Are, 

www.americanbridgepac.org/about.................3, 21

Federal Election Commission,

Campaign Finance Disclosure Portal, 

http://www.fec.gov/pindex.shtml.........................18

Detailed Files About Candidates, Parties and 

Other Committees: Files By Election Cycle, 

http://www.fec.gov/finance/disclosure/ftpdet.sh

tml#a2011_2012 .............................................17

Center for Responsive Politics

www.OpenSecrets.org..........................................19

http://www.opensecrets.org/bigpicture/

index.php..............................................................20

http://www.opensecrets.org/bigpicture/

reelect.php............................................................33

http://www.opensecrets.org/earmarks/

index.php..............................................................19

http://www.opensecrets.org/elections..................19

Freedom of Speech (painting), Wikipedia, 

http://en.wikipedia.org/wiki/Freedom_of_Speech_(

painting).................................................................3

Tampa Bay Times,

www.PolitiFact.com.............................................17
- 1 -

STATEMENT OF INTEREST 

Amicus curiae Cause of Action Institute, Inc.

(“CoA”) is a non-partisan, non-profit organization

that investigates, exposes, and fights federal 

government waste, fraud, and cronyism.

1

www.causeofaction.org. Cause of Action uses 

investigative, legal, and communications tools to 

educate the public about how transparency and 

accountability protects taxpayer interests and 

economic opportunity. On March 13, 2013, for 

example, CoA released a report on government 

agencies’ compliance with the federal Freedom of 

Information Act, 5 U.S.C. §§ 552, et seq., finding that 

federal agencies “continue to fall short of a culture of 

transparency in the Federal Government.”2 Thus, 

CoA has a unique perspective on the nature of

“transparency” and “corruption” related to political 

speech, and hence on the arguments presented in 

this case.

 

1

Pursuant to Rule 37.2(b), amicus certifies that counsel 

for Appellees have provided the Clerk with blanket consent to 

file amicus briefs, and counsel for Appellants have consented to 

the filing of this brief. Copies of the consents have been filed 

with the Clerk. 

Pursuant to Rule 37.6, amicus certifies that no counsel 

for a party authored this brief in whole or in part, and no such 

counsel, party or person other than the amicus or its counsel 

made a monetary contribution intended to fund the preparation 

or submission of this brief. 

2 www.gradingthegovernment.com. See also Cause of 

Action v. Nat’l Archives & Records Admin., No. 12-1342, 2013 

U.S. Dist. LEXIS 28725 (D.D.C. Mar. 1, 2013) (challenging 

Archivist’s denial of access to Financial Crisis Inquiry 

Commission records).
- 2 -

CoA agrees with the Appellants’ arguments

and supports their request for reversal of the 

decision below. CoA writes separately to discuss the 

changing character of political interaction since 

Buckley v. Valeo, 424 U.S. 1 (1976), and the effect of 

that change on the anti-circumvention rationale for 

the aggregate contribution limits. In Citizens United

v. Federal Election Commission, the Court predicted: 

“Soon, however, it may be that Internet sources, 

such as blogs and social networking Web sites, will 

provide citizens with significant information about 

political candidates and issues.” 558 U.S. 310, 364

(2010). That day has arrived, and CoA will address 

how the historic anti-circumvention doctrine is 

inappropriate in today’s technology-driven brutal 

and highly-efficient political environment. 

 
- 3 -

STATEMENT OF CONTEXT

Norman Rockwell’s painting “Freedom of 

Speech,” features a man speaking in a town hall 

meeting – a lone individual speaking out in dissent 

and being accorded a respectful hearing.3 But we no 

longer live in a Norman Rockwell world. A speaker 

today likely will be filmed by others, edited, analyzed 

and dissected by advocates or opponents, and 

pilloried or hailed within moments. “If you’re at a 

town hall meeting, take out your iPhone and record 

it, we’d love to highlight your footage on our site.” 

www.americanbridgepac.org/about.

4

If Norman Rockwell were to paint “Freedom of 

Speech” today, the “town hall” would be much 

bigger. The speaker would be sitting in front of a 

computer or smartphone updating his blog or her 

Twitter feed, a voice heard by the Nation (or the 

world). The audience will have voluminous 

information, including detailed analyses of 

contributions (both objective and slanted), just a 

click away. This is political engagement and free 

speech in the twenty-first century. It is unlike 

anything that the judges and legislators of the last 

century imagined.5

 

3

http://en.wikipedia.org/wiki/Freedom_of_Speech_(paint

ing). 

4

http://www.americanbridgepac.org/about/ (last visited 

May 8, 2013).

5

Perhaps not all. “As far back as the 1970s 

Congressman Gore ... was the first elected official to grasp the 

potential of computer communications to have a broader impact

than just improving the conduct of science and scholarship.” 

Robert Kahn and Vinton Cerf, “Al Gore and the Internet,” 
- 4 -

With the advent of smartphone technology, 

this Court is examining the 1974 doctrine of anticircumvention in an era of real-time campaign 

finance disclosure. In less than twenty minutes, a 

citizen-activist can identify every candidate who has 

taken a donation from the Appellants, then tweet, 

blog, email or text that information to a wider 

audience. 

In Citizens United, the Court predicted: 

“Soon, however, it may be that Internet sources, 

such as blogs and social networking Web sites, will 

provide citizens with significant information about 

political candidates and issues.” 558 U.S. at 364. 

“Soon” has become “now.”6

The result is an environment where historic 

assumptions about disclosure and corruption may be 

obsolete. “Rapid changes in technology—and the 

creative dynamic inherent in the concept of free 

expression—counsel against upholding a law that 

restricts political speech in certain media or by 

certain speakers.” Citizens United, 558 U.S. at 364.

Modern politics may be appropriately 

considered a contact sport. See Doe v. Reed, 561 U.S. 

 

http://web.eecs.umich.edu/~fessler/misc/funny/gore,net.txt, last 

visited May 8, 2013. 

6

“Americans increasingly place their trust in social 

media sources—almost as much as or more than they trust 

traditional news outlets, according to some recent surveys.” 

Pam Greenberg, Social Media: Becoming a Trusted Source for 

Political Information,” The Thicket at State Legislatures, Nat’l 

Conf. of State Legislatures, Feb. 6, 2013, 

http://ncsl.typepad.com/the_thicket/2013/02/social-mediabecoming-the-go-to-source-for-political-information-.html. 
- 5 -

__, __; 130 S.Ct. 2811, 2837 (2010) (Scalia, J., 

concurring) (“Requiring people to stand up in public 

for their political acts fosters civic courage, without 

which democracy is doomed.”).7 A speaker today, 

however, requires more than “civic courage” to speak 

or associate, at least in the context of political 

campaign contributions.8

A contributor, especially one who wants to 

dissent from traditional party positions or promote a 

broad base of candidates, faces numerous 

governmental restrictions, perhaps requiring the 

speaker to establish a political committee, register 

with a government agency, and limit contributions 

or expenditures at particular times or in particular 

amounts. “As a practical matter, however, given the 

complexity of the regulations and the deference 

courts show to administrative determinations, a 

 

7

See also “But anyone pretending shock that opposition 

research includes discussions about a person’s emotional or 

mental health has been dwelling in some alternate universe.” 

Kathleen Parker, “Beauty & the beast,” The Washington Post, 

April 12, 2013, 

http://www.washingtonpost.com/opinions/kathleen-parkerashley-judd-and-rough-politics/2013/04/12/2dd331f6-a3a9-11e2-

9c03-6952ff305f35_story.html.

8

In other areas as well: See, e.g., Chris Young, Reity

O’Brien & Andrea Fuller, “Corporations, pro-business 

nonprofits foot bill for judicial seminars,” Center for Public 

Integrity: Consider the Source, March 28, 2013, 

http://www.publicintegrity.org/2013/03/28/12368/corporationspro-business-nonprofits-foot-bill-judicial-seminars. The “Find a 

Judge” tool, available at the Center for Public Integrity’s 

Consider the Source website, allows anyone to choose a federal 

judge’s name and link that judge to a corporation paying for a 

seminar the judge attended.
- 6 -

speaker who wants to avoid threats of criminal 

liability and the heavy costs of defending against 

FEC enforcement must ask a governmental agency 

for prior permission to speak.” Citizens United, 558 

U.S. at 335. As the incomprehensible contribution 

limit charts in Appellant RNC’s opening brief 

indicate, these are complex and interlocking 

restrictions. Br. on the Merits for Appellant 

Republican Nat’l Comm., 17a–18a. 

Thus, in today’s Norman Rockwell “Freedom 

of Speech” painting, the lone Tweeter would have 

her lawyer on speed-dial on her smartphone. “Our 

Nation’s speech dynamic is changing, and 

informative voices should not have to circumvent 

onerous restrictions to exercise their First 

Amendment rights.” Citizens United, 558 U.S. at 

364. Aggregate limits were crafted in a time when 

the town hall was still the small room in a Rockwell 

painting. Now our town hall is so big that the entire 

nation participates in the conversation (though 

respectful listeners are rarer than many would 

prefer). 

Yet the aggregate limit continues to stifle the 

“informative voices” of at least a few individuals with 

“civic courage.” If the changing circumstances mean 

that the interests underlying the aggregate limit no 

longer justify the intrusions upon First Amendment 

rights, the balance must be re-examined. 

In an era in which parties and campaigns 

compete not only with other like entities, but also 

with independent voices armed with the latest 

technology and an almost limitless ability to 
- 7 -

uncover, analyze and publish contributor 

information,9does the rationale for the current 

aggregate limits survive? 

 

SUMMARY OF ARGUMENT 

Congress may have been correct, in 1974, to 

assume that even “full disclosure”10 of campaign 

contributions was insufficient to prevent 

circumvention of the individual aggregate 

contribution limits. In 1974, “full disclosure” meant 

filing paper copies in isolated government offices, 

adding to a mountain of similar forms.

Today, however, “full disclosure” means 

something else. A vast industry of public and private 

researchers and analysts is primed to receive any 

contribution filings, cross-check the filings against 

other records and against patterns and profiles, and 

instantly report any seeming discrepancies, 

especially any seemingly large contributions. In light 

of this new public capacity for instantaneous 

analysis, the aggregate limits are not needed to 

protect the individual contribution limits. 

In addition, after Citizens United, the new 

freedom to speak directly means that there is no 

reason for a speaker to attempt to evade the 

individual contribution limits. These alternative 

 

9

Sasha Eisenberg, How President Obama’s campaign 

used big data to rally individual voters, MIT TECH. REV. (Dec. 

16, 2012), 

http://www.technologyreview.com/featuredstory/508836/howobama-used-big-data-to-rally-voters-part-1/. 

10 See Buckley v. Valeo, 424 U.S. 1, 78 (1976).
- 8 -

speech and association mechanisms are perfectly 

legal, and they make the aggregate limits irrelevant. 

As the Department of Justice recently testified, “We 

anticipate seeing fewer cases of conduit 

contributions directly to campaign committees or 

parties, because individuals or corporations who 

wish to influence elections or officials will no longer 

need to attempt to do so through conduit 

contribution schemes that can be criminally 

prosecuted. Instead, they are likely to simply make 

unlimited contributions to Super PACs or 501(c)s.”11

The remaining effect of the aggregate limits is 

to punish those few donors who want to support 

more candidates directly than the aggregate limits 

permit. Thus the aggregate limits are simply 

another attempt to prevent persons of wealth (or 

those who seek to promote challengers or innovative 

candidates) from associating in the manner they 

choose. This “leveling the playing field” cannot be 

justified by the limited governmental interest in the 

aggregate limits. 

The aggregate limits are no longer needed and 

are counterproductive to their expressed goal. The 

aggregate limits violate the First Amendment, and 

should be struck down.

 

11 Current Issues in Campaign Finance Law: Hearing 

Before Subcomm. On Crime & Terrorism of the S. Comm. On 

the Judiciary, 113 Cong. 1 (2013) (statement of Mythili Raman, 

Acting Assistant Att’y Gen., Criminal Div.), available at

http://www.judiciary.senate.gov/pdf/4-09-

13RamanTestimony.pdf (“Raman Statement”), at 3.
- 9 -

ARGUMENT 

It is important to recognize at the outset that 

the Appellants in this case are not seeking to exceed 

the individual contribution limits. They do not want 

to engage in “conduit” transactions in which they 

would give money to others to report in the others’ 

names.12

Those conduit transactions remain illegal, and 

the Department of Justice is enforcing those rules. 

“Since 2010, the Department has successfully 

prosecuted more than a dozen cases involving 

campaign finance violations.”13 Assistant Attorney 

General Raman noted that seven of those 

prosecutions involved “conduit” violations.14

Discussion of public issues and debate on the 

qualifications of candidates are “integral to the 

operation of the system of government established by 

our Constitution.” Buckley v. Valeo, 424 U.S. 1, 14 

(1976). The First Amendment affords the broadest 

protection to such political expression in order “to 

assure [the] unfettered interchange of ideas for the 

bringing about of political and social changes desired 

by the people.” Roth v. United States, 354 U.S. 476, 

484, (1957). 

The aggregate limits at issue in this case 

curtail the number of candidates, PACs, and political 

 

12 United States v. Whittemore, No. 12–CR–0058, 2013 

U.S. Dist. LEXIS 57198, at *16 (D. Nev. Apr. 18, 2013) 

(denying motion to suppress evidence of alleged conduit 

contributions). 

13 Raman Statement, supra note 11.

14 Id. at 1-2.
- 10 -

party committees to whom a person can 

meaningfully contribute. In Buckley, however, the 

Court noted: “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 abridgment of associational 

freedoms.” 424 U.S. at 25 (internal citations 

omitted); see also Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 388-89 (2000).15“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.” Buckley, 424 U.S. at 38 (emphasis added).

Advances in technology, however, have shown 

that the aggregate limits are no longer necessary as 

a “corollary” to the individual limits; circumvention 

attempts can be discovered by both public and 

private reviews. New freedoms to speak after 

Citizens United undercut the incentive to 

circumvent the individual limits, and the 

Department of Justice anticipates fewer conduit 

contributions prosecutions. And the remaining 

lingering effect of the aggregate limits is to “level the 

playing field,” which this Court does not permit. 

 

15 “We consequently proceeded on the understanding 

that a contribution limitation surviving a claim of associational 

abridgment would survive a speech challenge as well, and we 

held the standard satisfied by the contribution limits under 

review.” Shrink Mo. Gov't PAC, 528 U.S. at 388. 
- 11 -

The aggregate limits are obsolete and should 

be struck down. “The limits directly suppress the 

political speech of both contributors and candidates, 

and only clumsily further the governmental interests 

that they allegedly serve.” Shrink Mo. Gov't PAC,

528 U.S. at 428 (Thomas, J., dissenting).

 

I. THE AGGREGATE LIMITS ARE NOT 

NARROWLY TAILORED TO THE 

GOVERNMENT’S INTEREST IN AVOIDING 

CIRCUMVENTION OF THE INDIVIDUAL 

CONTRIBUTION LIMITS. 

A. The Aggregate Limits Are No Longer Needed 

Because “Fully Disclosed” Means Something 

Different Now Than in 1974. 

In 1974, Congress felt that disclosure, using 

the means available at the time, was insufficient to 

prevent circumvention of the individual contribution 

limit. Buckley, 424 U.S. at 28 (“Congress was surely 

entitled to conclude that disclosure was only a 

partial measure, and that contribution ceilings were 

a necessary legislative concomitant to deal with the 

reality or appearance of corruption inherent in a 

system permitting unlimited financial contributions, 

even when the identities of the contributors and the 

amounts of their contributions are fully disclosed.”). 

In the technology of 1974, that may have been 

true, when “fully disclosed” meant something 

different to Congress – reports were filed on paper 
- 12 -

and available only in a few offices.16 “Fully 

disclosed,” in 1974, meant buried in a mountain of 

paper filings. Absent any easy alternative to 

examining contribution reports, individually or in 

combination, Congress might have felt that the

burden of an aggregate limit was justified by a need 

to protect the contribution limit. 

Today, there are effective and efficient public 

and private alternatives, all designed to disclose and 

publicize any evasions of the contribution limit. The 

Justice Department, the media, and private 

organizations all use these technologies to monitor, 

in real-time, campaigns and donors, and release the 

results on the Internet free of charge, in formats 

expressly designed to be used by relatively 

unsophisticated analysts and observers. “Fully 

disclosed,” Buckley, 424 U.S. at 28, is different 

today. The difference demonstrates that aggregate 

limits are no longer tailored to the problem Congress 

was addressing. 

1. In 1974, Information About Candidates and 

Donors Was Not Easily Accessible. 

Forty years ago, there was no Internet, 

political parties and their candidates were the only 

way most Americans experienced political 

campaigns, and Walter Cronkite and his media 

colleagues spoke as one of the few authoritative 

sources of news and commentary. Citizens could not 

 

16 Fed. Election Comm’n, First Ten Years Report (1985) 

(“First Ten Years”), at 9, available at

http://fec.gov/pdf/firsttenyearsreport.pdf.
- 13 -

independently evaluate corruption in politics, 

especially that not covered in the news media. 

Perhaps as a result, “no candidate was ever 

prosecuted for violating federal campaign-finance 

law” from 1925 until the passage of the Federal 

Election Campaign Act (“FECA”)

17 in 1971.18

The 1971 FECA was the first federal 

campaign finance scheme to impose a relatively 

centralized administrative framework and to require 

full reporting of political spending.19 FECA required 

disclosure of all contributions and expenditures 

exceeding one hundred dollars.20 Monitoring was 

entrusted to the Clerk of the House, the Secretary of 

the Senate, and the General Accounting Office.21 

The 1972 election generated “shock waves of 

momentous revelations” concerning abuses by the 

Nixon Presidential campaign.22 Investigations

uncovered “illegal and improper” campaign practices 

and financing.23

 

17 Federal Election Campaign Act of 1971, 92 Pub. L. 

No. 225, 86 STAT. 3 (1972).

18 James L. Regens & Ronald Keith Gaddie, THE 

ECONOMIC REALITIES OF POLITICAL REFORM: ELECTIONS & THE 

U.S. SENATE 15 (1995).

19 First Ten Years, supra note 16, at 1. 

20 Id. at 1-2.

21 Id. at 2.

22 Buckley v. Valeo, 519 F.2d 821, 835 (D.C. Cir. 1975) 

(en banc), aff’d in part, rev’d in part, 424 U.S. 1 (1976).

23 S. SELECT COMM. ON PRESIDENTIAL CAMPAIGN 

ACTIVITIES, FINAL REPORT, S. REP. NO. 93-981, at xxiii (1974). 
- 14 -

Congress reacted. “The overriding concern 

behind the enactment of statutes such as the Federal 

Corrupt Practices Act[

24] was the problem of 

corruption of elected representatives through the 

creation of political debts. The importance of the 

governmental interest in preventing this occurrence 

has never been doubted.” Federal Election 

Commission v. National Right to Work Committee, 

459 U.S. 197, 208 (1982) (quoting First National 

Bank of Boston v. Bellotti, 435 U.S. 765, 788, n.26

(1978)).

Congress established the Federal Election 

Commission and restricted the amount an individual 

could directly give a candidate—capping it at $1,000 

per candidate, in the 1974 amendments to FECA.25 

To provide the new agency with the ability to enforce 

the individual contribution limit, the 1974 FECA 

Amendments imposed a maximum limit of $25,000 

on all contributions by an individual to candidates, 

PACs, and national, state and local political parties 

throughout each annual election cycle.26 This is the 

genesis of the “aggregate limits” at issue in this 

case.27 Buckley, 424 U.S. at 38 (“The over-all $25,000 

 

24 See Federal Corrupt Practices Act of 1925, ch. 368, 43 

Stat. 1070 (1925).

25 Federal Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, 88 Stat. 1263 (1974).

26 Buckley, 424 U.S. at 38 (“[T]his quite modest 

restraint . . . serves to prevent evasion of the $1,000 

contribution limitation . . . .”). 

27 The Bipartisan Campaign Finance Reform Act 

(BCRA) of 2002 replaced the aggregate limit at issue in 
- 15 -

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. . . . 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.”).

One of the challenges hampering FECA’s 

usefulness as a corruption deterrent was that, as a 

practical matter, the information about campaign 

contributions was inaccessible to the public. Reports 

were filed on paper; there was no alternative. “By 

the end of 1984, the [FEC Public Records] office had 

made public 5.59 million pages of documents.”28

Disclosure in 1974 meant a civil servant 

retrieved an index card or paper filing from a filing 

cabinet.29 The FEC admitted that analysis of those 

filings was even worse: “The first indexes compiled 

manually by the FEC staff in 1975 are primitive 

when compared to the variety of FEC computer 

indexes now available [in 1985].”30

Those computer indexes were available only in 

press releases and a few state offices;31 to get the 

actual filings and any non-indexed records, the 

 

Buckley with a new, split set of aggregate limits. 2 U.S.C. § 

441a(a)(3) (2012). 

28 First Ten Years, supra note 166, at 9.

29 Id., at 9; Kathleen Sullivan, Comment, Two Concepts 

of Freedom of Speech, 124 HARV. L. REV. 143, 174 (2010).

30 First Ten Years, supra note 16, at 9. 

31 Id. 
- 16 -

public had to request assistance from the FEC’s 

Public Records Office.32 The “5.59 million pages of 

documents” the FEC reported it made available by 

1985 were, essentially, unavailable to the average 

person seeking information.33 Public disclosure was 

consequentially quite limited.34

In theory, at least, a wrongdoer could gamble 

that the information would not be accessible on a 

timely basis. This Court took note: 

And while disclosure requirements serve the 

many salutary purposes discussed elsewhere 

in this opinion, Congress was surely entitled 

to conclude that disclosure was only a partial 

measure, and that contribution ceilings were a 

necessary legislative concomitant to deal with 

the reality or appearance of corruption 

inherent in a system permitting unlimited 

financial contributions, even when the 

 

32 Id. (“In 1984, the [FEC] Public Records Office served

17,240 people and received 13,183 telephone inquiries.”). 

33 Id.

34 Following the money in Alabama politics might soon 

get a whole lot easier. Officials of the Alabama Secretary of 

State’s office say they’ll launch a searchable online database of 

campaign donations by the end of May — replacing the office’s 

old system of paper filings and scanned-in documents. State 

officials say the changes should make it easier for average 

voters to figure out who’s accepting money from whom.” Tim 

Lockette, Alabama Campaign Finance Reports Soon to Go 

Online, Anniston Star (May 4, 2013), 

http://www.annistonstar.com/view/full_story/22472052/articleAlabama-campaign-finance-reports-soon-to-goonline?instance=home_news. 
- 17 -

identities of the contributors and the amounts 

of their contributions are fully disclosed.

Buckley v. Valeo, 424 U.S. 1, at 28 (1976) (emphasis 

added) (footnote omitted). 

This is the context for the enactment of the 

aggregate limit as an anti-circumvention device: for 

both government and private observers in 1974, even 

full disclosure was not robust enough to monitor 

evasions of the individual contribution limit. Id.

2. Today, Information About Candidates and 

Donors Is Readily Available. 

Today, information about candidates, parties, 

and campaign contributors is widely available 

through the Internet.35 Disclosure reports filed by 

political committees are now available on the FEC’s 

website within 48 hours; reports filed electronically 

are available “almost instantaneously.”36 Bloggers 

and social media serve as the principal means of 

communicating information to a significant segment 

 

35

See, inter alia, FED. ELECTION COMM’N, Detailed Files 

About Candidates, Parties and Other Committees: Files By 

Election Cycle, http://www.FEC.gov/disclosure.shtml (last 

visited May 8, 2013); CENTER FOR RESPONSIVE POLITICS, 

OPENSECRETS.ORG, http://www.OpenSecrets.org (last visited 

May 8, 2013); Tampa Bay Times, POLITIFACT, 

http://www.PolitiFact.com (last visited May 8, 2013).

36 FED. ELECTION COMM’N, Quick Answers to Disclosure 

Questions, http://www.fec.gov/ans/answers_disclosure.shtml 

(last visited Apr. 8, 2013). 
- 18 -

of the American electorate (as they do around the 

world).37

In addition, the development of free, on-line 

disclosure reports and cumulative databases puts 

previously-inaccessible information at the fingertips 

of even the least sophisticated analysts.38 For 

example, the FEC maintains a free on-line database 

of election contributions, often reported within hours 

of the contribution.39 The FEC makes available free 

data downloads for further data mining.40 The 

Department of Justice uses the FEC database as its 

primary research tool to uncover instances of 

campaign contribution abuse.41

 

37 Katie Denshaw, “Social media becoming crucial 

political tool,” The Philadelphia Inquirer, April 26, 2013,

http://articles.philly.com/2013-04-06/news/38329744_1_socialmedia-president-obama-mitt-romney; Maureen ODanu, Social 

Media Becoming Major News Source for Journalists, 

Technorati (May 18, 2011), http://www.technorati.com/socialmedia/article/social-media-becoming-major-news-source.

38 See, e.g., FED. ELECTION COMM’N, PERFORMANCE AND 

ACCOUNTABILITY REPORT FOR FY 2012 14-15 (Nov. 15, 2012), 

http://www.fec.gov/pages/budget/fy2012/FEC_PAR_FY_2012-

Final.pdf (noting that the “Campaign Finance Disclosure 

Portal” is designed to “simplify access to the wide range of data 

available on the agency’s web site” by incorporating “a variety 

of search tools that will help users make the best use of the 

Commission’s data sources,” and the “Candidate and 

Committee Viewer” that allows “users to analyze specific 

transactions in a customizable way”).

39 See FED. ELECTION COMM’N, Campaign Finance 

Disclosure Portal, http://www.fec.gov/pindex.shtml.

40 See, supra note 33. 

41 Raman Statement, supra note 16, at 2.
- 19 -

Perhaps more important, however, is the 

development of private entities’ searchable systems 

of contribution disclosure and analysis. The Center 

for Responsive Politics, for example, maintains the 

web site OpenSecrets.org, which provides a 

“Politicians and Elections” portal, 

http://www.opensecrets.org/elections/, with 

searchable databases of Presidential, Congressional 

and party contributions, and cross-links that data on 

such topics as “earmarks,”42personal finances,43 and 

past elections:44

 

42 Center for Responsive Politics, OpenSecrets.org, 

http://www.opensecrets.org/earmarks/index.php (last visited 

May 8, 2013) (“This database in large part seeks to detail how 

the recipients of federal earmarks interact with the federal 

government through lobbying efforts and campaign 

contributions. Readers may now, for example, determine the 

degree to which people and political action committees 

associated with a specific company or organization have 

donated money to a congressman responsible for giving that 

company or organization an earmark.”). 

43 Center for Responsive Politics, Politicians & 

Elections, OpenSecrets.org, 

http://www.opensecrets.org/elections (last visited May 8, 2013) 

(description of “Personal Finances” database: “You can also see 

how much money elected and appointed officials have invested 

in industries they regulate and how they might stand to benefit 

personally from decisions your government makes. This is the 

Web’s only searchable database of officials’ personal financial 

reports, which are filed annually and are notoriously difficult to 

analyze.”). 

44Id. (description of “Historical Elections” database: 

“This section gives historical context to OpenSecrets.org’s 

unparalleled campaign finance data, illuminating trends over 

time in fundraising and spending—the most influential 
- 20 -

There are a million stories to be found on 

the OpenSecrets website about the interaction 

between money and politics. But what’s the 

bottom line and what are the most important 

– and interesting – trends from the last 

election? That’s what you'll find here in the 

Big Picture.

Have a look at the menus on the left side of 

the page and start clicking away. You’ll find

answers to basic questions about the role that 

money plays in our elections. You may also 

find answers to questions you never thought 

to ask. And if the Big Picture isn’t enough, 

there are tens of thousands of other pages 

here on OpenSecrets that will take you as 

deep as you want to go.45

Part of this expansion of public access is the 

corollary expanding concept of “opposition research,” 

which covers candidates and campaigns closely, 

awaiting any missteps that can yield political value. 

A number of organizations now conduct opposition 

research and post the results on the Internet, in 

some cases, requesting aid from the general public 

using modern technology.46 Some of these private 

 

industries, the biggest donors, the cost of winning a seat in 

Congress and so much more.”).

45 Center for Responsive Politics, The Money Behind 

the Elections, OpenSecrets.org, 

http://www.opensecrets.org/bigpicture/index.php (last visited 

May 8, 2013). 

46See, e.g., American Bridge 21st Century. “American 

Bridge 21st Century is a progressive research and 

communications organization committed to holding 

Republicans accountable for their words and actions and 
- 21 -

recordings can change a campaign. “One of the most 

influential figures in the 2012 election, the bartender 

who secretly filmed [former Presidential candidate 

Mitt] Romney at a private fundraiser in Boca Raton, 

Fla., last May had been anonymous until now.”47

The result of this massive public access 

system is a brutally-efficient political environment. 

Private organizations, not registered with or 

regulated by the FEC, serve as opposition 

researchers. “Fact-checkers” at major and minor 

publications stand ready to attack, and “reform” 

organizations promote limits on speech that would 

have shocked Norman Rockwell. 

Campaign finance disclosure in a world of 

modern information technology empowers voters to 

follow contributions and judge for themselves 

whether the recipients have their best interests at 

heart.48 Modern technology has reduced the amount 

of time between the filing of a disclosure statement 

and its delivery in a central depository easily 

 

helping you ascertain when Republican candidates are 

pretending to be something they’re not.” Who We Are,

American Bridge 21st Century, 

http://www.americanbridgepac.org/about (last visited May 8, 

2013).

47 Rachel Weiner, Scott Prouty Reveals Himself As Man 

Who Shot ’47 Percent’ Video, Wash. Post (Mar. 13, 2013, 8:19 

PM), http://www.washingtonpost.com/blogs/postpolitics/wp/2013/03/13/scott-prouty-reveals-himself-as-manwho-shot-47-percent-video/.

48 Kathleen M. Sullivan, Against Campaign Finance 

Reform, 1998 UTAH L. REV. 311, 326 (1998) (“The rise of 

instantaneous mass communication over the Internet has 

transformed the world that FECA faced in 1974.”). 
- 22 -

accessible to the public.49 “The advances brought by 

the new technology provide agencies with an 

efficient and effective means of sorting, auditing and 

retrieving campaign finance information, offer the 

public virtually immediate access to the data, in both 

raw and summary formats, and enable campaigns to 

ensure error-free reporting along with performing 

other campaign management functions.”50 

Large donations will stand out in contribution 

disclosure filings.51 Journalists, bloggers, and other 

interested parties make the public aware of the 

candidates’ source of funds.52 The recent news 

coverage of the passing of major political donor Bob 

Perry, for example, cited FEC, media and private 

 

49 See, e.g., Samuel Issacharoff & Pamela Karlan, The 

Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 

1705, 1737 (1999) (Wisconsin put all campaign finance 

information online within twenty-four hours). 

50 Craig B. Holman & Robert Stern, Campaign Money 

on the Information Superhighway: Electronic Filing and 

Disclosure of Campaign Finance Reports, CENTER FOR 

GOVERNMENTAL STUDIES (1999), available at 

http://www.policyarchive.org/handle/10207/bitstreams/225.pdf.

51 Tom Donnelly, Candidate Venture Capital, 80 U. CIN.

L. REV. 753, 780 (2012) (“[O]ne might expect disclosure to work 

better here, where the few deep pocket supporters of an 

otherwise-destitute candidate are likely to stand out on a 

disclosure report. Therefore, if such a candidate manages to 

build a viable campaign, her deep pocket supporters are then 

likely to become a campaign issue - whether through related 

media reports or negative attack ads.”).

52 See, e.g., Billy Hallowell, Meet the 5 Biggest Donors 

to the Obama & Romney Campaigns, THE BLAZE (Oct. 19, 

2012), http://www.theblaze.com/stories/2012/10/19/meet-the-5-

biggest-donors-to-the-obama-romney-campaigns.
- 23 -

sources: “Since 2004, Mr. Perry had given a total of 

at least $45 million in federal contribution –

excluding direct donations to candidates, according 

to Federal Election Commission records, a 2012 

[Associated Press] analysis, and figures from the 

Center for Responsive Politics.”53 

In the past, this Court has ignored the impact 

of high-speed Internet communication on FECA’s 

disclosure regime when examining the government’s 

interest in combating corruption.54 Yet, only three 

years ago, the Court predicted that these new media 

outlets would have an effect on public discourse. 

Citizens United, 558 U.S. at 364. Given the 

prophylactic reforms enacted by Congress,55 the 

presence of the FEC’s on-line resources, and the 

legions of available private researchers, analysts and 

advocates, the environment facing a would-be 

miscreant seeking to evade the contribution limits is 

significantly different than in 1974.

The Court in Buckley upheld the aggregate 

limits because “disclosure was only a partial 

measure, ... even when the identities of the 

contributors and the amounts of their contributions 

 

53 Paul J. Weber, Perry remembered as titan of 

spending, Wash. Times, Apr. 16, 2013, at A6.

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

408 (2000) (“Among the facts the Court declines to take into 

account is the emergence of cyberspace communication by 

which political contributions can be reported almost 

simultaneously with payment.”) (Kennedy, J., dissenting). 

55 See, e.g., Brief on the Merits for Appellant

Republican National Committee, at 26-43 (describing various 

Congressional actions since 1974). 
- 24 -

are fully disclosed.” 424 U.S. at 28. Given the 

different environment today, “fully disclosed” means 

something different. “Our Nation’s speech dynamic 

is changing, and informative voices should not have 

to circumvent onerous restrictions to exercise their 

First Amendment rights.” Citizens United, 558 U.S. 

at 364.

Even if the aggregate limits were justified in 

1974, the environment has changed. Although the 

government interests the aggregate limits were 

intended to protect may not have changed, those 

limits themselves are no longer narrowly tailored to 

the interests. They should be struck down.

 

B. The New Freedom to Make “Independent 

Expenditures” Has Removed the Major Incentive 

to Circumvent the Individual Limits. 

The other major change from 1974 is the 

development of alternative methods for individuals 

to speak during political campaigns. Prior to 

Citizens United, it was difficult for individuals to 

speak before an election: 

The First Amendment does not permit laws 

that force speakers to retain a campaign 

finance attorney, conduct demographic 

marketing research, or seek declaratory 

rulings before discussing the most salient 

political issues of our day. Prolix laws chill 

speech for the same reason that vague laws 

chill speech: People “of common intelligence 

must necessarily guess at [the law’s] meaning 

and differ as to its application.” 
- 25 -

Citizens United, 558 U.S. at 324 (quoting Connally 

v. Gen. Constr. Co., 269 U. S. 385, 391 (1926)).

Now, after Citizens United, speakers can 

make unlimited independent expenditures 

supporting, opposing or discussing the relative 

merits of candidates. “In other words, as long as a 

corporation or other entity spends money for political 

speech that is truly independent of the candidate or 

campaign that it supports, it may spend as much 

money as it wishes.”56

The Court has spoken often on the need to 

avoid chilling speech and to protect speakers’ choice 

of mechanisms. “The First Amendment protects 

appellees’ right not only to advocate their cause but 

also to select what they believe to be the most 

effective means for so doing.” Meyer v. Grant, 486 

U.S. 414, 424 (1988); see also Citizens United, 558 

U.S. at 326. “[I]ndividuals contribute to a political 

organization in part because they regard such a 

contribution as a more effective means of advocacy 

than spending the money under their own personal 

direction.” FEC v. Mass. Citizens for Life, Inc., 479 

U.S. 238, 261 (1986). 

Those alternative means are readily available 

to cautious donors now. These lawful, compliant 

expenditures can be made by one speaker or in 

conjunction with others. SpeechNow.org v. FEC, 599 

F.3d 686 (D.C. Cir. 2010) (en banc) (applying 

exacting scrutiny to federal laws imposing disclosure 

and organizational requirements).

 

56 Raman Statement, supra note 11, at 3.
- 26 -

“Dark money”

57 is a new, and in light of the 

First Amendment issues involved, misleading 

shorthand phrase for funds lawfully contributed to 

advocacy where the identity of the donor is not 

required to be disclosed – but the phrase 

demonstrates exactly the opposite of the intention of 

the FEC campaign finance disclosure regime. The 

proliferation of “dark money” in the current political 

environment is in large part due to nonprofit 

organizations that are not required to disclose their 

donors—particularly Internal Revenue Code Section 

501(c)(4)-qualified “social welfare” organizations. In 

the 2012 election, these groups lawfully spent $400

million58 (out of total 2012 campaign spending of

more than $6 billion).

59

Since Mass. Citizens for Life, Inc., 479 U.S. at 

263-65, and FEC v. Beaumont, 539 U.S. 146, 163 

(2003), Section 501(c)(4) organizations generally 

operate outside the scope of FEC restrictions, can 

raise unlimited amounts of contributions, and are 

 

57Bill Allison, Daily Disclosures, Sunlight Foundation

(Oct. 18, 2013, 12:43 PM), 

http://sunlightfoundation.com/blog/2010/10/18/dailydisclosures-10/.

58 Paul Blumenthal, ‘Dark Money’ in 2012 Election Tops 

$400 Million, Huffington Post (Nov. 2, 2012), 

http://www.huffingtonpost.com/2012/11/02/dark-money-2012-

election-400-million_n_2065689.html. 

59 Center for Responsive Politics, 2012 Spending Will 

Reach $6 Billion, Open Secrets Blog (Oct. 31, 2012, 2:33 PM)

http://www.opensecrets.org/news/2012/10/2012-electionspending-will-reach-6.html.
- 27 -

not required to disclose their donors.60 President 

Obama’s campaign committee was re-launched after 

the 2012 election as a Section 501(c)(4) organization, 

Organizing for America, and has been criticized for 

perpetuating dark money and a lack of 

transparency.61 

A Section 501(c)(4) organization can engage in 

“independent expenditure” political activities as long 

as electioneering is not the organization’s primary 

purpose.62 This has typically been interpreted to 

mean that the Section 501(c)(4) organization cannot 

spend more than fifty percent of its resources on 

campaign-related activity, but this level allows the 

organization substantial flexibility to promote or 

oppose political candidates.63

 

60 I.R.C. § 6104(d)(3); Anthony J. Gaughan, The Futility 

of Contribution Limits in the Age of Super PACs, 60 DRAKE L.

REV. 755, 782-83 (2012).

61 Alana Goodman, Lobbying for Action: OFA Registers 

as lobbyist in NY despite anti-lobbyist positions, WASH. FREE 

BEACON (Apr. 12, 2013), http://freebeacon.com/lobbying-foraction/; Fred Wertheimer, A Challenge to President Obama’s 

New 501(c)(4) Group, Huffington Post (Jan. 29, 2013), 

http://www.huffingtonpost.com/fred-wertheimer/a-challenge-topresident-_b_2569105.html.

62 John Francis Reilly & Barbara A. Braig Allen,

Political Campaign and Lobbying Activities of IRC 501(c)(4), 

(c)(5), and (c)(6) Organizations, Internal Revenue Service, at L3 (2003), available at http://www.irs.gov/pub/irstege/eotopicl03.pdf.

63 See, e.g., Joseph M. Birkenstock, Three Can Keep a 

Secret, If Two of Them Are Dead: A Thought Experiment 

Around Compelled Public Disclosure of “Anonymous” Political 

Expenditures, 27 J.L. & POLITICS 609, 612 n.8 (2012).
- 28 -

In addition, a prospective donor could make 

unlimited contributions to FEC-regulated 

“independent expenditure-only” political committees

(known informally as SuperPACs).

64 Like Section 

501(c)(4) organizations, SuperPACs may receive 

contributions without limits (and without counting 

against a donor’s aggregate limit), and can make 

unlimited independent expenditures. SpeechNow.org 

v. FEC, 599 F.3d 686, 695-96 (D.C. Cir. 2010) (en 

banc). Unlike a Section 501(c)(4) organization, all 

contributions to a SuperPAC are disclosed. Id. at 

697-98.

The Department of Justice acknowledges that 

“[t]hese developments are having a profound effect 

on our ability effectively to enforce the campaign 

finance laws.” Raman Statement, supra note 11, at 

2. 

The increasing use of Super PACs and the 

types of [Internal Revenue Code Section] 

501(c) organizations described above impacts 

transparency and changes the kinds of 

criminal cases the Department can bring 

under our campaign finance laws. We 

anticipate seeing fewer cases of conduit 

contributions directly to campaign committees 

or parties, because individuals or corporations 

who wish to influence elections or officials will 

no longer need to attempt to do so through 

conduit contribution schemes that can be 

 

64See, e.g., FEC Advisory Opinion 2010-11 

(Commonsense Ten), at pp. 2-3, July 22, 2010, 

http://saos.nictusa.com/aodocs/AO%202010-11.pdf. 
- 29 -

criminally prosecuted. Instead, they are likely 

to simply make unlimited contributions to 

Super PACs or 501(c)s.

Id. at 3.

The effect of that freedom to speak and 

associate during election campaigns is still unclear, 

with some claiming impending doom,65 and others 

pointing to the 2012 elections as evidence that the 

use of more speech did not affect one of the most 

contentious elections in recent history.66

The ability to donate large sums to a Section 

501(c)(4) organization or a SuperPAC means that 

 

65 E.J. Dionne, Jr., Opinion, Fighting big money with 

big money, Wash. Post (Mar. 27, 2013) (“But imagine that you 

also believe the Supreme Court’s Citizens United decision was 

a disaster for representative government because a narrow 

majority broke with long precedent and tore down the barriers 

to corporate money in politics.”), 

http://www.washingtonpost.com/opinions/ej-dionne-michaelbloomberg-and-fighting-money-withmoney/2013/03/27/54fa52d4-96f5-11e2-b68fdc5c4b47e519_story.html. 

66 Ezra Klein, We got way too excited over money in the 

2012 elections, Wash. Post (May 6, 2013) (“But it’s hard to look 

at the 2012 election, with its record fundraising and the flood of 

super PACs and all the rest of it, and come away really 

persuaded that money was a decisive player.”), 

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/06/

we-got-way-too-excited-over-money-in-the-2012-elections/; Tim 

Dickinson, How President Obama Won A Second Term, Rolling 

Stone (Nov. 23, 2012) (quoting political analyst James Carville: 

“Never have so few spent so much to accomplish so little. We all 

freak out that the money in politics is going to change 

everything. As it turned out, it really didn't change much.”), 

http://www.rollingstone.com/politics/news/how-presidentobama-won-a-second-term-20121123#ixzz2QdnM5cjL. 
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those seeking to contribute in excess of the aggregate 

limits have the ability to do so, entirely in 

compliance with the laws. The contributions, 

however, cannot be to the candidates the donors 

want to elect or political parties they want to 

support; they must be made to groups independent 

of the candidates or parties.

In other words, where aggregate limits might 

have been necessary in the past to prevent conduit 

contributions, now there is far less incentive to use 

conduits. We will see “fewer cases of conduit 

contributions” because donors “no longer need to 

attempt to do so.” Raman Statement, supra note 11, 

at 3. Thus, there is no substantial connection 

between the aggregate limits and the expressed 

governmental interest supporting them. In such 

cases, even a slight burden imposed by the aggregate 

limits undercuts their constitutionality in the face of 

the highly-protected associational rights at issue 

here.

 

C. The Major Effect of the Aggregate Limits in 

a Smartphone Era Is an Impermissible 

“Leveling” of Speech. 

The aggregate limits impose a constitutionally 

impermissible burden on speech by restricting the 

speech of some to enhance the relative voice of 

others.67 This Court has “repeatedly rejected the 

 

67See Citizens United, 558 U.S. at 340-41 (“By taking 

the right to speak from some and giving it to others, the 

Government deprives the disadvantaged person or class of the 

right to use speech to strive to establish worth, standing, and 
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argument that the government has a compelling 

state interest in ‘leveling the playing field’ that can 

justify undue burdens on political speech.”68

That there are relatively few of those on whom 

the burden falls does not lessen the First 

Amendment impact. “References to massive 

corporate treasuries should not mask the real 

operation of this law.” Citizens United, 558 U.S. at 

355. 

In today’s environment, the aggregate limits 

sweep both too broadly and not enough; in fact, they 

are counter-productive. They restrict those persons 

who are compliant with the individual contribution 

limits, such as Appellant McCutcheon, and exclude 

those who want to give more than the aggregate 

limits would permit, such as the late Bob Perry, who 

could spend $45 million without counting political 

contributions.69 And they end up incentivizing 

potential donors to donate in ways that are both 

unlimited and not disclosed, undermining the 

rationale for the current campaign finance laws.

In reality, the aggregate limits will fall only 

on a very small sub-class of persons: those who want 

 

respect for the speaker's voice. The Government may not by 

these means deprive the public of the right and privilege to 

determine for itself what speech and speakers are worthy of 

consideration.”), 349-50; Ariz. Free Enter. Club’s Freedom Club 

PAC v. Bennett, 131 S. Ct. 2806, 2821 (2011).

68 Arizona Free Enterprise, 131 S. Ct. at 2825-26 

(“’Leveling the playing field’ can sound like a good thing. But in 

a democracy, campaigning for office is not a game. It is a 

critically important form of speech.”).

69 See Weber, supra note 53.
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to support candidates through disclosed 

contributions rather than independent expenditures. 

Thus, the only persons who will be affected by the 

aggregate limits are those who wish to contribute 

directly to candidates and to be disclosed as having 

done so. Given the ubiquitous nature of campaign 

finance reporting and analysis described above, this 

small group will likely be those who comply with the 

law (or perhaps are ignorant of the realities of 

today’s political environment).

A perverse result of the current brutallyefficient disclosure regime is that today’s on-line 

services benefit principally those who wish to use the 

information to attack an opponent’s supporters.70

The aggregate limits, however, expose these donors 

to intense public scrutiny while at the same time 

limiting their ability to counter the criticism that 

invariably arises. The Court can assume that these 

donors, like many before them, will either not speak 

or will use other means to protect themselves. 

The effect of limiting the aggregate limits to

this small group of lawful and careful donors is to 

shift contributions away from candidates and 

parties, and into the independent expenditure 

organizations. Those who suffer from this shift will 

likely be innovative and distinctive candidates who 

 

70 “Activists hope to use this information to publicly 

browbeat their opponents and eliminate their participation in

public policy debates.” Paul Atkins, SEC Should Reject 

Partisan Ploy: Opposing View, U.S.A. Today, May 1, 2013, 

available at 

http://www.usatoday.com/story/opinion/2013/05/01/sec-politicaldonations-disclosure-rule-editorials-debates/2128009/. 
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don’t otherwise enjoy the support of the mainstream 

parties. McConnell v. FEC, 540 U.S. 93, 249-50

(2003) (Scalia, J., concurring in part and dissenting 

in part) (“[A]ny restriction upon a type of campaign 

speech that is equally available to challengers and 

incumbents tends to favor incumbents.”). 

In House of Representatives elections from 

1964 through 2012, general election success rates for 

incumbents were at least 85%, and usually much 

higher.71 Incumbents normally begin their 

campaigns with a large base of support, enjoying 

“such advantages as name recognition, press 

coverage, free mailings to their constituents, and a 

free staff.”72 

Because only a small percentage of the 

electorate actually pays attention to the earliest days 

of a political race, challengers and third-party 

candidates typically have no choice but to rely on 

donations from a small group of wealthy, politicallymotivated contributors.73 The need for campaign 

cash is most apparent early in a campaign’s life 

cycle.74 If aggregate limits shift funding from these 

challengers to independent expenditures, there may 

 

71 Center for Responsive Politics, Reelection Rates Over 

the Years, OpenSecrets.org, 

http://www.opensecrets.org/bigpicture/reelect.php (last visited 

May 8, 2013).

72 See Yasmin Dawood, Electoral Fairness and the Law 

of Democracy, 62 U. TORONTO L.J. 499, 547-48 (2012). 

73 Tom Donnelly, Candidate Venture Capital, 80 U. CIN.

L. REV. 753, 761-63 (2012).

74 Id. at 764, 772-773 (“[M]ost challengers receive seed 

money from a handful of individual contributors.”).
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be no innovative, upstart campaigns for the 

independent expenditures to support. 

Thus, a doctrine designed to promote a larger 

number of smaller contributions to candidates will 

end up with the opposite effect: incentivizing 

politically-active persons to spend their political 

dollars in other ways, which do not include the 

disclosure deemed essential to the campaign finance 

system. Thus, the aggregate limits exacerbate the 

“covert speech” problem identified in Shrink Mo. 

Gov’t PAC, 528 U.S. at 406 (Kennedy, J., dissenting), 

and run counter to their expressed goals. They are 

not narrowly-tailored to their identified 

governmental interests.

Advances in technology have given the public 

access to information that can be used to reveal 

patterns of corruption where they exist. Citizens 

United and its progeny have given contributors 

multiple avenues to speak, undercutting the 

incentive to circumvent the individual contribution 

limits. And the aggregate limits function more as an 

impermissible “leveling” mechanism in the field of 

speech than as an anti-circumvention tool. In this 

light, the aggregate limits may no longer be a 

“corollary” to the individual contribution limits. The 

law is “extraordinarily ill-fitted to that goal,” and 

“other means to protect those valid interests are 

available.”75 Therefore, whether or not they 

originally met the standard of review, today the 

aggregate limits fail to meet that standard.

 

75 Bullock v. Carter, 405 U.S. 134, 146 (1972).
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 CONCLUSION 

For the foregoing reasons, Amicus Curiae

Cause of Action Institute respectfully requests this 

Court to reverse the decision below. 

BARNABY W. ZALL

Counsel of Record 

Weinberg, Jacobs 

 & Tolani, LLP

7018 Tilden Lane Daniel Z. Epstein

Rockville, MD 20852 Hallee Morgan 

(301) 231-6943 Justin Meyers

bzall@bzall.com Marie Connelly

Robyn Burrows

Karen Groen

CAUSE OF ACTION 

 INSTITUTE

1919 Pennsylvania Ave.,

 N.W.

Washington, D.C. 20006