No. 12-536

IN THE

Supreme Court of the United States

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

(800) 274-3321 • (800) 359-6859

A

BRIEF OF AMERICANS FOR CAMPAIGN REFORM 

AS AMICUS CURIAE SUPPORTING APPELLEE

248610

SHAUN MCCUTCHEON, et al.,

Appellants,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

Counsel for Amicus Curiae

CHARLES FRIED

Counsel of Record

1545 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-4636

fried@law.harvard.edu

ROBERT J. DWYER

ALANNA C. RUTHERFORD

BOIES, SCHILLER

& FLEXNER LLP

575 Lexington Avenue

New York, NY 10022

(212) 446-2300
i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITES . . . . . . . . . . . . . . . iii

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

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

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

A. Cong re s s Int ended BCR A To Be 

A Mo r e F l e x i b l e A n d E f fe c t i ve 

M e a n s o f A c c o m p l i s h i n g T h e 

Same Anti-Corruption Goals This

 Court Has Previously Endorsed. . . . . . . . . . . . . .9

B. The McCutcheon Panel Recognized 

That Absent The Aggregate Limits, 

There Were Potential Channels For 

Large Sums Of Additional Money To 

Flow That Would Escape The Regulation

 Intended By The Base Limits. . . . . . . . . . . . . . .12

C. BCRA’s Aggregate Contribution Limits Are 

The “Least Restrictive” And Most Readily 

Administrable Method of Protecting Against

 The Circumvention of Anti-

 Corruption Mechanisms. . . . . . . . . . . . . . . . . . . .15
ii

Table of Contents

Page

1. Absent Aggregate Limits, Existing 

Leg islation Is Insu f f icient To 

Fulfill The Anti-Circumvention

 Purpose of BCRA. . . . . . . . . . . . . . . . . . . . .16

2. A pp el l a nt s P r of fe r e d C lo s ely 

D r a w n A l t e r n a t i ve s Fa i l To 

Prevent The Anti-Corruption And 

Anti-Circumvention Goals Of The

 Current FECA Legislation.. . . . . . . . . . . . .19

3. Citizens United Does Not Alter The 

Propriety of Anti-Circumvention

 Measures Or Their Analysis.. . . . . . . . . . . .23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
iii

TABLE OF CITED AUTHORITIES

Page

CASES

Allnet Commc’n Serv., Inc. v. 

Nat’l Exch. Carrier Ass’n, Inc., 

 965 F.2d 1118 (D.C. Cir. 1992). . . . . . . . . . . . . . . . . . .14

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

Bennett, 

 131 S. Ct. 2806 (2011). . . . . . . . . . . . . . . . . . . . . . . 2, 23

Buckley v. Valeo, 

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

California Medical Association v. FEC, 

 453 U.S. 182 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Citizens United v. FEC, 

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

FEC v. Colo. Republican Fed. Campaign Comm. 

(“Colorado II”), 

 533 U.S. 431 (2001). . . . . . . . . . . . . . . . . . . . .6, 8, 13, 18

FEC v. Mass. Citizens for Life, Inc., 

 479 U.S. 238 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . .6, 7

FEC v. 

Nat’l Conservative Political Action Comm., 

 470 U.S. 480 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6
iv

Cited Authorities

Page

FEC v. Nat’l Right to Work Comm., 

 459 U.S. 197 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

FEC v. Wisconsin Right To Life, 

 551 U.S. 449 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Harris v. United States, 

 336 U.S. 545 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

McConnell v. FEC, 

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

McCutcheon v. FEC, 

 No. 12-1034 (D.D.C. Sept. 28, 2012) . . . . . . . . . passim

Nat’l Wildlife Fed’n v. 

 U.S. Army Corps of Engineers, 

 384 F.3d 1163 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . .14

Nixon v. Shrink Missouri Gov’t PAC, 

 528 U.S. 377 (2000). . . . . . . . . . . . . . . . . . . . . . . . . .4, 22

Randall v. Sorrell, 

 548 U.S. 230 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Reasonover v. St. Louis Cnty., Mo., 

 447 F.3d 569 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . .14

Shays v. FEC, (“Shays II”)

 414 F.3d 76 (D.C. Cir. 2005). . . . . . . . . . . . . . . . . . . . . .9 
v

Cited Authorities

Page

Shays v. FEC (“Shays III”), 

 528 F.3d 914 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . .9, 10

Turner Broadcasting System, Inc. v. FCC, 

512 U.S. 622, 114 S. Ct. 2445, 

 129 L. Ed.2d 497 (1994) . . . . . . . . . . . . . . . . . . . . . . . .22

Turner Broadcasting System, Inc. v. FCC, 

 520 U.S. 180 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . .12

United States v. IBM, 

 517 U.S. 843 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

United States v. Sowers, 

 136 F.3d 24 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . .14

Wis. Right to Life State Political Action Comm. 

v. Barland, 

 664 F.3d 139 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . .5

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

STATUTES

2 U.S.C. § 441a(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

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

2 U.S.C. § 441i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
vi

Cited Authorities

Page

OTHER AUTHORITIES

147 Cong. Rec. S2943-02 (daily ed. Mar. 27, 2001)

 (statement of Sen. Kerry) . . . . . . . . . . . . . . . . . . . . . .11

147 Cong. Rec. S3233-06 (daily ed. Apr. 2, 2001) 

 (statement of Sen. Feinstein) . . . . . . . . . . . . . . . . . . .11

147 Cong. Rec. S3233-06 (daily ed. Apr. 2, 2001) 

 (statement of Sen. Kohl) . . . . . . . . . . . . . . . . . . . . . . .11

148 Cong. Rec. S2096-02 (daily ed. Mar. 20, 2002) 

 (statement of Sen. Dodd). . . . . . . . . . . . . . . . . . . . . . .11

148 Cong. Rec. S2096-02 (daily ed. Mar. 20, 2002) 

 (statement of Sen. Grassley) . . . . . . . . . . . . . . . . . . . .11

FEC, Thirty Year Report 5 (Sept. 2005), 

available at http://www.fec.gov . . . . . . . . . . . . . . . . .14

Investigation on Illegal or Improper Activities 

in Connection With the 1996 Federal 

Election Campaigns, the Minority Report: 

Executive Summary (March 1998), available 

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

 politics/special. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Jeanne Cummings, 2008 Campaign Costliest in 

U.S. History, Politico (Nov. 5, 2008, 5:28 AM), 

http://www.politico.com/news/stories/1108/

 15283.html. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
vii

Cited Authorities

Page

McCutcheon vs. FEC, OpenSecrets.org, http://

www.opensecrets.org/overview/mccutcheon.

 php . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

The American Heritage Dictionary of the 

 English Language 1652 (4th Ed. 2006) . . . . . . . . . . . .9

Wright, Miller & Kane, 10A Federal Practice 

 & Procedure § 2716 (3d ed.) . . . . . . . . . . . . . . . . . . . .14

3 1998 Senate Report 4565. . . . . . . . . . . . . . . . . . . . . . . .10
1

INTEREST OF AMICUS CURIAE

Americans For Campaign Reform (“ACR”) is a 

nonpartisan 501(c)(3) organization, chaired by John Rauh, 

ACR’s founder.1

 ACR is co-chaired by former Senators 

Bill Bradley, Bob Kerrey, and Alan Simpson. The 

President and Chief Executive Offi cer of ACR is Lawrence 

Noble, who worked at the Federal Election Commission 

(“FEC”) for more than twenty years, serving as General 

Counsel from 1987 until 2000. Americans For Campaign 

Reform believes that the longstanding limits on the size 

of contributions imposed by national, state and local 

legislation are important to encouraging ordinary citizens 

to participate in the electoral process, by affi rming their 

belief that their participation—by their support and by 

their votes—makes a difference. The Court has affi rmed 

the principle that governments may, within a broad 

range, impose both base and aggregate contribution 

limits in every decision since Buckley v. Valeo, fi nding 

such limitations an important bulwark against forces that 

would undermine the confi dence, and thus discourage the 

participation of ordinary citizens, in the electoral process.

1. No counsel for a party authored this brief in whole or in 

part, and no such counsel or party made a monetary contribution 

intended to fund the preparation or submission of this brief. No 

person other than the amicus, or its counsel, made a monetary 

contribution intended to fund its preparation or submission. 

The Solicitor General has fi led a blanket waiver with the Court 

consenting to the submission of all amicus briefs. Both petitioners 

have also consented and their consents are attached hereto.
2

SUMMARY OF ARGUMENT

Starting 37 years ago with Buckley v. Valeo, 424 

U.S. 1, 58 (1976), and without exception in every case 

since, this Court has insisted on the distinction between 

contributions and expenditures, leaving the contribution 

limit amount to the judgment of the legislature within a 

broad range. See Ariz. Free Enter. Club’s Freedom Club 

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

Sorrell, 548 U.S. 230, 241 (2006) (collecting cases). The 

regime of contribution limits enacted by Congress in the 

Federal Election Campaign Act (“FECA”) in 1972 and 

approved in Buckley and in every legislative iteration since 

have included a limit not only on direct contributions to 

individual candidates and committees (“base limits”), but 

also aggregate limits. It is the aggregate limits that 

Appellants attack.2

The Court’s consistent justifi cation for contribution 

limits of both kinds has been the prevention of corruption 

or the appearance of corruption. See Citizens United v. 

2. The campaign fi nance regime currently in place with the 

inclusion of base and aggregate limits began 42 years ago with the 

passage of FECA and the inclusion of base and aggregate limits 

in each iteration of those laws has been upheld by this Court. In 

turn, states have reframed their own campaign fi nance laws to 

conform with the constitutional framework upheld since Buckley.

Overturning that framework will have collateral impact beyond 

just the pronouncements of Congress. See United States v. IBM,

517 U.S. 843, 856 (1996) (stare decisis “promotes the evenhanded, 

predictable, and consistent development of legal principles, fosters 

reliance on judicial decisions, and contributes to the actual and 

perceived integrity of the judicial process”); Harris v. United 

States, 336 U.S. 545, 556-57 (2002) (recognizing the fundamental 

importance of stare decisis).
3

FEC, 558 U.S. 310, 360 (2010). Whatever space may be left 

between these forbidden rationales and outright bribery 

(which is, of course, subject to criminal law) is the space 

that base contribution limits occupy. At the time the case 

was initially heard, any individual could contribute $2,500 

to a candidate, $30,800 to each national political party or 

committee, $10,000 to any state party political committee, 

and $5,000 to any other political committee per election 

cycle. See McCutcheon v. FEC, No. 12-1034, slip op. at 2-3 

(D.D.C. Sept. 28, 2012) (citing legislative and regulatory 

provisions).3

 The three-judge panel of the lower court has 

shown that without aggregate limits, a contributor may 

annually contribute as much as $3,500,000, all of which 

might without any violation of law directly or indirectly 

be used to support an individual candidate. Id. at 3.

In this brief, amicus demonstrates that the sum 

is much greater than that, given the possibility of 

a potentially unlimited number of political action 

committees (“PACs”) to which a contributor may make 

contributions up to the base limit set for contributions to 

such committees. Each such committee may then make 

contributions to individual candidates. In view of the iron 

rule that in political campaigns whatever may lawfully be 

done will be done, without aggregate contribution limits, 

3. The limits are adjusted biannually for infl ation. 2 U.S.C. 

§ 441a(c). Although the above cites the contribution limits when 

the case was fi rst litigated, the 2013-2014 contribution limits by 

an individual are now capped at $123,200 annually, with a base 

limit of $2,600 for candidates and $32,400 to national parties and 

committees. The base limits to any state and local party political 

committee and other political committees remained the same 

at $10,000 and $5,000 respectively. See http://www.fec.gov/info/

contriblimitschart1314.pdf.
4

the amount of money that a contributor can hope to direct 

to a chosen candidate is virtually limitless. 

Base limits are a longstanding, familiar, and 

approved legislative safeguard against corruption or 

its appearance. This Court has previously established 

that Congress acted with suffi cient reason in concluding 

that the concerns that justify the base limits on direct 

contributions extend to justify setting aggregate limits. 

Congress is therefore entitled to prevent such potentially 

unlimited contributions from entering campaigns through 

what would soon become only a slightly indirect route. 

See Citizens United, 558 U.S. at 459 (“on account of the 

extreme diffi culty of proving corruption, ‘prophylactic 

measures, reaching some [campaign spending] not corrupt 

in purpose or effect, [may be] nonetheless required to 

guard against corruption.’” (quoting Buckley, 424 U.S. 

at 30; see Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 

377, 392, n.5 (2000)).4

Finally, amicus demonstrates that the changes 

in the earlier regime wrought by the Bipartisan 

Campaign Reform Act (BCRA) and other adjustments 

in that regime—particularly provisions treating as one 

committee several committees set up in association 

with each other (anti-proliferation rules), and provisions 

counting against a contributor’s base limit contributions 

explicitly earmarked to that candidate (anti-earmarking 

rules)—are quite inadequate to protect the integrity of 

the regime of base limits. The alternatives proposed by 

4. Appellants also do not challenge Congress’s constitutionally 

granted power to regulate federal elections. See U.S. Const. art. 

I, § 4.
5

Appellants are—to the extent that one can understand 

them at all—complex, unadministrable, and ineffective. 

ARGUMENT

It is well established that there is a “legitimate and 

compelling government interest in preventing corruption 

or the appearance of corruption,” namely the reality 

or appearance of quid pro quo arrangements between 

candidates and those making contributions. FEC v. 

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

480, 496–97 (1985); see also Wis. Right to Life State 

Political Action Comm. v. Barland, 664 F.3d 139, 153 

(7th Cir. 2011) (reiterating that “preventing actual or 

apparent quid pro quo corruption is the only interest 

the Supreme Court has recognized as suffi cient to justify 

campaign fi nance restrictions”). As the Buckley Court 

pointed out, unlimited contributions present a danger of 

quid pro quo corruption because it is “diffi cult to isolate 

suspect contributions.” 424 U.S. at 30. As such, aggregate 

contribution limits, in addition to base contribution limits, 

were found to be a “quite modest restraint upon protected 

political activity [which] serves to prevent evasion” of the 

contribution limits. Id. at 38. This “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.” Id.

“[M]ore importantly, Congress was justified in 

concluding that the interest in safeguarding against the 

appearance of impropriety requires that the opportunity 

for abuse inherent in the process of raising large monetary 

contributions be eliminated.” Id. (emphasis added). Even 
6

while acknowledging that “few if any contributions to 

candidates will involve quid pro quo arrangements,” 

the Citizens United Court most recently explained that 

contribution limits have been repeatedly upheld since 

Buckley for the reason that they are “preventative.” 558 

U.S. at 357 (citing FEC v. Mass. Citizens for Life, Inc., 

479 U.S.238, 260 (1986); Nat’l Conservative Political 

Action Comm. 470 U.S. at 500; FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 210 (1982)); Buckley, 424 U.S. at 

39 (upholding FECA’s aggregate contribution limits as a 

“quite modest restraint” that served “to prevent evasion 

of the $1,000 [then base] contribution limitation by a 

person who might otherwise contribute massive amounts 

of money to a particular candidate through the use of 

unearmarked contributions to political committees likely 

to contribute to that candidate, or huge contributions to 

the candidate’s political party”); see also FEC Mot. at 14 

(“This Court’s decision in California Medical Association 

v. FEC, 453 U.S. 182 (1981), confi rms that aggregate limits 

and limits on contributions to political committees can 

permissibly coexist under the First Amendment.”). 

Similarly, this Court has also already concluded that 

anti-circumvention is a worthy goal and that there are not 

“better crafted safeguards” that make aggregate limits 

unnecessary. FEC v. Colo. Republican Fed. Campaign 

Comm. (“Colorado II”), 533 U.S. 431, 462 (2001); 

McConnell v. FEC, 540 U.S. 93, 144 (2003) (“because the 

First Amendment does not require Congress to ignore the 

fact that ‘candidates, donors, and parties test the limits 

of the current law, these interests have been suffi cient to 

justify not only contribution limits themselves, but laws 

preventing the circumvention of such limits”) (quoting 

Colorado II, 533 U.S. at 456–57 (“all Members of the Court 

agree that circumvention is a valid theory of corruption”)). 
7

Appellants seek to constrain recourse to the anticircumvention rationale, by invoking the Chief Justice’s 

dismissal of a different rule in a different context as 

“prophylaxis upon prophylaxis”. See RNC Br. 30-31, 

51. But Appellants ignore that that remark was made 

in response to a purported justifi cation for limiting the 

form and content of expression by an entity speaking 

independently of any candidate, see FEC v. Wisconsin 

Right To Life, 551 U.S. 449, 479 (2007), and unconnected 

to the making of contributions, which is what is at issue 

in this case. 

Because Appellants do not challenge BCRA’s base 

limits on contributions, McCutcheon Br. 17–20; RNC Br. 

6–7, they cannot deny that base limits are compatible with 

First Amendment freedoms of expression and association. 

See McCutcheon, slip op. at 9 (“Plaintiffs do not, however, 

challenge the base contribution limits, so we may 

assume they are valid expressions of the government’s 

anticorruption interest.”). Rather, Appellants object to 

the regime of aggregate limits.

Thus, the only question before the Court is whether 

BCRA’s aggregate limits are closely drawn to prevent the 

circumvention of anti-corruption measures.5

 They are. 

5. The Court’s previous decisions have all made clear strict 

scrutiny review does not apply to contributions. See Buckley,

424 U.S. at 25 (“In view of the fundamental nature of the right 

to associate, governmental ‘action which may have the effect 

of curtailing the freedom to associate is subject to the closest 

scrutiny.’”); McConnell , 540 U.S. at 136; Mass. Citizens for 

Life, Inc., 479 U.S. at 259–260 (“We have consistently held that 

restrictions on contributions require less compelling justifi cation 

than restrictions on independent spending.”). Contrary to 

Appellants’ suggestion, however, even if strict scrutiny review 
8

Appellants ignore the three-judge panel’s determination 

that the base contribution limits alone will not prevent 

the unlimited fl ow of money (and, hence, at the very least 

the appearance of corruption) into campaigns. Instead, 

Appellants invite the Court to rely upon Appellants’ 

judgment or to substitute its own judgment for that of 

Congress’s as to what would constitute better and less 

restrictive alternative measures of regulation. Appellants, 

however, offer scant detail regarding what these 

supposedly more narrowly drawn but equally effective 

measure would look like. 

did apply to this case, the district court’s decision should still be 

upheld, as it reviewed the record in this case and relied in the 

extensive record evidence about BCRA acquired from previous 

cases to support its decision. See McCutcheon, slip op. at 9-10 

(citing McConnell, 540 U.S. at 146 (“The evidence in the record 

shows that candidates and donors alike have in fact exploited the 

soft-money loophole, the former to increase their prospects of 

election and the latter to create debt on the part of offi ceholders, 

with the national parties serving as willing intermediaries. Thus, 

despite FECA’s hard-money limits on direct contributions to 

candidates, federal offi ceholders have commonly asked donors to 

make soft-money donations to national and state committees ‘solely 

in order to assist federal campaigns,’ including the offi ceholder’s 

own.”); Colorado II, 533 U.S. at 458-459 & n. 22 (discussing the 

practice of tallying donations and citing to the declarations of 

various senators noting the correlation between money received 

by the candidate from the committee and how much the candidate 

encouraged donors to donate to committee)).
9

A. Congress Intended BCRA To Be A More 

Flexible And Effective Means of Accomplishing 

The Same Anti-Corruption Goals This Court 

Has Previously Endorsed.

The legislative history of the Bipartisan Campaign 

Reform Act of 2002, which amends FECA, demonstrates 

that Congress passed BCRA to accomplish the same anticorruption goal by increasing the penalties for violating 

the conduit-contribution limitations and introducing 

measures specifi cally designed to regulate “soft money.” 

See 2 U.S.C. § 441i.

Before BCRA, FECA limited only “federal” or 

“hard” money contributions. See McConnell, 540 U.S. 

at 122. Contributions known as “soft money” were not 

subject to caps. Id. at 122–23.6

 As this Court explained 

in McConnell in upholding the soft-money bans in BCRA, 

“national parties transferred large amounts of their 

soft money to the state parties, which were allowed to 

use a larger percentage of soft money to fi nance mixedpurpose activities under FEC rules.” Id. at 124. Softmoney contributions were “dramatically larger than 

the contributions of hard money permitted by FECA.” 

Id. Significantly, “[n]ot only were such soft-money 

6. “Over time, ‘contributions subject to [FECA’s] source, 

amount, and disclosure requirements’ came to be known as ‘hard 

money,’ Shays v. FEC, 414 F.3d 76, 80 (D.C. Cir. 2005) (“Shays 

II”), while ‘[p]olitical donations made in such a way as to avoid 

federal regulations or limits’ came to be known as ‘soft money,’ The 

American Heritage Dictionary of the English Language 1652 (4th 

Ed.2006); see also Shays II, 414 F.3d at 80 (defi ning ‘soft money’ 

as ‘[f]unds outside FECA’s sphere’).” Shays v. FEC, 528 F.3d 914, 

917 (D.C. Cir. 2008) (“Shays III”).
10

contributions often designed to gain access to federal 

candidates, but they were in many cases solicited by 

candidates themselves. . . . The solicitation, transfer, and 

use of soft money thus enabled parties and candidates to 

circumvent FECA’s limitations on the source and amount 

of contributions in connection with federal elections.” 

Id. at 125–26. The McConnell Court was particularly 

concerned about unregulated money – local and state 

election money – fi nding its way into federal elections; 

so one may think of soft money as any money outside of 

prescribed contribution limits that is used to undermine 

the campaign fi nance regime those contribution limits 

seeks to put in place. See Shays III, 528 F.3d at 917.

A 1998 Senate Report argued that soft-money 

contributions caused “campaign abuses.” McConnell,

540 U.S. at 180 (quoting 3 1998 Senate Report 4565). 

The Report further explained that the soft-money 

loophole “eviscerated the contribution limits . . . in federal 

election laws and caused a loss of public confi dence in the 

integrity of our campaign fi nance system.” Investigation 

on Illegal or Improper Activities in Connection With 

the 1996 Federal Election Campaigns, the Minority 

Report: Executive Summary (March 1998), available at 

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

campfin/stories/demsummary.htm. Thus, Congress 

engaged in an effort “to plug the soft-money loophole,” 

which became the purpose of Title I of BCRA. McConnell,

540 U.S. at 180.

Numerous Senators stated that they voted for 

BCRA’s regime of clear base and aggregate limits, with 

no opportunity for circumvention by various “soft money” 

devices in order to limit the corruption and appearance 
11

of corruption arising from contributions far in excess 

of prescribed base limits. See 148 Cong. Rec. S2096-02 

(daily ed. Mar. 20, 2002) (statement of Sen. Dodd) (arguing 

that soft-money contributions create “a corrupting 

infl uence, suggesting that large contributions by donors 

to offi ceholders, candidates, and political parties provide 

those donors with preferred access and infl uence over 

public policy,” and that “the public perception of even the 

appearance of corruption erodes public confi dence in the 

integrity of our electoral process”); 147 Cong. Rec. S3233-

06 (daily ed. Apr. 2, 2001) (statement of Sen. Feinstein) 

(“These gigantic contributions are what warp our 

politics and cause people to lose faith in our Government 

and they must be halted. They give the appearance of 

corruption.”); 147 Cong. Rec. S2943-02 (daily ed. Mar. 27, 

2001) (statement of Sen. Kerry) (citing statistics showing 

that “overwhelming majorities think special interest 

contributions affect the voting behavior of Members of 

Congress”); 147 Cong. Rec. S3233-06 (daily ed. Apr. 2, 

2001) (statement of Sen. Kohl) (arguing that Congress 

“must combat the perception of corruption,” and that the 

“presence of unlimited political contributions” either is 

corrupting or “creates the appearance of corruption”). 

Even Senators who opposed the bill agreed that large 

individual contributions pose a risk of corruption. For 

example, Senator Grassley stated that “[e]ffective 

limitations on soft money are necessary to reduce real 

and perceived corruptions in the system.” 148 Cong. Rec. 

S2096-02 (daily ed. Mar. 20, 2002) (statement of Sen. 

Grassley).

Because it is diffi cult to know what the next method 

of circumventing the campaign finance laws will be, 

Congress is entitled to some leeway in balancing the 
12

constitutional and prudential concerns addressed by the 

aggregate contribution limits that BCRA established. 

See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 

180, 196 (1997) (“Even in the realm of First Amendment 

questions where Congress must base its conclusions 

upon substantial evidence, deference must be accorded 

to its fi ndings as to the harm to be avoided and to the 

remedial measures adopted for that end, lest we infringe 

on traditional legislative authority to make predictive 

judgments when enacting nationwide regulatory policy”); 

McConnell, 540 U.S. at 95. 

B. The McCutcheon Panel Recognized That 

Absent The Aggregate Limits, There Were 

Potential Channels For Large Sums Of 

Additional Money To Flow That Would Escape 

The Regulation Intended By The Base Limits.

The three-judge panel that decided Appellants’ claims 

recognized that “[u]nder the base contribution limits, 

for example, an individual could contribute as much as 

$3.5 million to one party and its affi liated committees in 

a single election cycle.” McCutcheon, slip op. at 3. The 

panel also recognized that “[t]his $3.5 million, moreover, 

does not include contributions to PACs, a sum that would 

equal $5,000 multiplied by whatever number of PACs 

an individual desires to give to.” Id. at n.1. As such, the 

panel recognized that base limits alone were inadequate 

protection against corruption or the appearance of 

corruption without the addition of the aggregate 

contribution limits. See id. at 9. Without the aggregate 

limits, nothing would prevent an individual contributor 

from giving checks of hundreds of thousands dollars, if 
13

not over a million dollars, more to a presidential joint 

fundraising committee that consisted of national and 

state party committees supporting a particular candidate. 

Base contribution limits also do not prevent individuals 

from contributing the base amount to a virtually limitless 

number of committees likely to support a particular 

candidate, thereby permitting individuals to circumvent 

the spirit and purpose of BCRA. 

In reviewing whether BCRA’s aggregate contribution 

limits were closely drawn to prevent circumvention of 

FECA base limits, the panel specifi cally reviewed what 

would happen if an individual gave a single check to a 

joint fundraising committee for half a million dollars. 

Id. at 9–10. While the committees are required to divide 

the money after a fundraiser, because party committees 

can transfer unlimited amounts of money to other 

party committees, the money may still fi nd its way to 

a single committee’s coffer which then might use the 

money for coordinated expenditures, which have “no 

signifi cant functional difference from the party’s direct 

candidate contributions.” Id. (citing Colorado II, 533 

U.S. at 460 (“The candidate who knows the coordinated 

expenditure derives from that single large check at the 

joint fundraising event will know precisely where to lay 

the wreath of gratitude.”)). Although the panel noted that 

such coordination between a large number of entities 

in service of a single contributor’s interests may seem 

unlikely, “there is no reason to think the quid pro quo 

of an exchange depends on the number of steps in the 

transaction.” Id. at 10 (citing McConnell, 540 U.S. at 

155). This daisy-chain scenario is exactly what several 

senators noted was happening prior to BCRA that led to 
14

its passage.7 See FEC, Thirty Year Report 5 (Sept. 2005), 

available at http://www.fec.gov/info/publications/30year.

pdf (political “parties frequently asked federal candidates 

and offi ceholders to help raise large soft money donations, 

offering donors access to current and future federal 

legislators and raising concerns about potential corruption 

or the appearance of corruption”). 

Indeed, it is not a far leap to imagine that a contribution 

would not have to be earmarked for a particular candidate 

to understand, for example, that PACs such as Indianans 

for a Better Congress, Hoosiers for a More Liberal 

Congress, and Accountants for a Congress That Counts 

will all use their funding to support the same candidate 

7. Even if the reasoning of the panel did not explicitly rely on 

this possibility, it noted the potentially unlimited contributions to 

PACs. Slip op. at n.1. This Court may still affi rm the result based 

on that rationale. See Reasonover v. St. Louis Cnty., Mo., 447 F.3d 

569, 578–79 (8th Cir.2006) (“this court may affi rm for any reason 

supported in the record, even if that reason is different from the 

rationale of the district court”); Nat’l Wildlife Fed’n v. U.S. Army 

Corps of Engineers, 384 F.3d 1163, 1170 (9th Cir. 2004) (“We may 

affi rm on any ground supported by the record even if it differs 

from the rationale of the district court.”); United States v. Sowers, 

136 F.3d 24, 28 (1st Cir. 1998) (“Mindful that we are not chained 

to the lower court’s rationale but may affi rm on any alternative 

ground supported by the record, we choose to follow a different 

analytic path.”); Allnet Commc’n Serv., Inc. v. Nat’l Exch. Carrier 

Ass’n, Inc., 965 F.2d 1118, 1119 (D.C. Cir. 1992); see also Wright, 

Miller & Kane, 10A Federal Practice & Procedure § 2716 (3d ed.) 

(“The appellate court does not have to affi rm a decision on a Rule 

56 motion for the same reasons that persuaded the court below 

to grant the motion. On the contrary, it can fi nd another ground 

for concluding that the movant is entitled to judgment as a matter 

of law and ignore any erroneous basis that the district court may 

have employed”). 
15

and that contributions made to each of them will either 

directly or indirectly fi nd their way to the candidate. 

Similarly, it is equally plausible that a large donor may call 

up a PAC and state that he is considering giving money to 

the PAC and has already given to Jones, and ask whether 

the PAC has also considered supporting Jones. Either 

method would permit an individual to utilize unearmarked 

contributions to give additional money to Jones that would 

be outside of the reach of the intended base contribution 

limits.

Whether or not such indirect contributions to 

committees when taken in the aggregate might be less 

valuable to a candidate than an equivalent contribution 

made directly to the candidate, Congress was justifi ed in 

fearing that such an arrangement could give rise to the 

same appearance or reality of quid pro quo corruption as 

contributions above the base limits. Indeed, Congress’s 

fi ndings concerning candidates’ receipt of mediated funds 

prior to BCRA supports the conclusion that permitting 

limitless contributions through intermediaries would lead 

to corruption or its appearance. McConnell, 540 U.S. at 

122–26 (discussing legislative history). 

C. BCRA’s Aggregate Contribution Limits Are 

The “Least Restrictive” And Most Readily 

Administrable Method of Protecting Against 

The Circumvention of Anti-Corruption 

Mechanisms. 

Appellants recognizing the weakness in their 

argument that BCRA’s aggregate limits serve no 

constitutionally permissible purpose and thus are an 

unjustifi ed limitation on First Amendment rights, see RNC 
16

Br. 20-21; McCutcheon Br. 21-30,contend instead that there 

must be less confi ning means of achieving the legitimate 

anti-circumvention purpose. They never clearly explain, 

however, what these alternatives would be and exactly how 

they would work. Indeed, Appellants’ proffered alternative 

means of preventing corruption or its circumvention 

either do not exist or are impractical. Because the stated 

alternative solutions cannot be established as more 

workable and there is a large legislative record on the need 

to prevent the circumvention of contribution limits, the 

aggregate contribution limits, which do so, should stand.

1. Absent Aggregate Limits, Existing 

Legislation Is Insuffi cient To Fulfi ll The 

Anti-Circumvention Purpose of BCRA.

Appellants contend that provisions in existing 

legislation would be suffi cient to prevent corruption or 

its appearance without recourse to aggregate limits. See 

McCutcheon Br. 40-43; RNC Br. 26-43. Each of those 

limitations standing alone or in conjunction fails to provide 

the anti-circumvention protection that aggregate limits 

provide. 

First, as noted by the three-judge panel, BCRA’s base 

contribution limits fail to adequately prevent corruption 

or its appearance without the addition of the aggregate 

contribution limits. McCutcheon, slip op. at 9 (“we cannot 

ignore the ability of aggregate limits to prevent evasion of 

the base limits.”). Base contribution limits do nothing to 

prevent individuals from contributing the base contribution 

amount to an unlimited number of committees likely to 

support a particular candidate, thereby permitting 

individuals to circumvent the base limits. In affi rming the 
17

aggregate limits, the district court panel noted the use 

of committees as a way to circumvent base limits against 

which BCRA’s regime of aggregate limits protects. Id.

at 9–10. For example, in the 2000 election cycle – which 

took place before the BCRA’s aggregate limits came into 

effect – 515 individuals made soft money contributions 

to the committees of the Democratic and Republican 

Party in amounts ranging from $100,000 to more than $1 

million. See McCutcheon vs. FEC, OpenSecrets.org, http://

www.opensecrets.org/overview/mccutcheon.php (citing to 

data released by the FEC on April 16, 2013). These are 

exactly the types of very large contributions that were 

prohibited by BCRA’s soft money ban, which was affi rmed 

as constitutional by this Court. See McConnell, 540 U.S. 

at 225; RNC Br. 36. Thirteen years later, one could only 

imagine what those amounts would be, had Congress not 

acted to eliminate the infl uence of soft money. To be sure, 

such indirect contributions through committees might be 

less valuable to a candidate than equivalent contributions 

made directly to the candidate, but it hardly follows that 

this device does not give rise to the appearance or reality 

of quid pro quo corruption. Indeed, Congress’s fi ndings 

concerning candidates’ use of party committees to divert 

soft money to federal elections supports the conclusion 

that permitting limitless mediated contributions does 

lead to corruption or its appearance. McConnell, 540 U.S. 

at 122–26.

Second, BCRA’s existing anti-proliferation rule, which 

treats all contributions made by affi liated committees as a 

contribution from a single committee, 2 U.S.C. § 441a(a)(5), 

is not an adequate substitute for the aggregate contribution 

limits. The rule is limited by its terms to contributions 

made by political committees “established or fi nanced 
18

or maintained or controlled” by a single corporation, 

labor organization, or other person. Id. Appellants do not 

argue, and there is nothing in the legislative record that 

would support an argument, that individuals could not 

circumvent the base contribution limits by contributing to 

multiple committees likely to support a single candidate, 

but lacking a relationship suffi cient to qualify as a single 

committee under § 441a(a)(5).

Third, Appellants’ argue that BCRA’s earmark 

provision, in which contributions earmarked for specifi c 

candidates are deemed direct contributions to the 

candidate, is sufficient to prevent corruption or the 

appearance of corruption. See McCutcheon Br. 50; 

RNC Br. 39-42. This “ignores the practical diffi culty of 

identifying and directly combating circumvention under 

actual political conditions.” Colorado II, 533 U.S. at 462. 

Under “actual political conditions”, earmarking provisions 

“reach only the most clumsy attempts to pass contributions 

through to candidates” and cannot be treated as “the outer 

limit of acceptable tailoring.” Id. Thus, the very generous 

aggregate limits in conjunction with other parts of the 

legislation are suffi ciently narrowly tailored to serve the 

anti-corruption and anti-circumvention goals without 

trampling on First Amendment association protections. 

The fact that a receiving candidate, party, or 

committee chooses how to spend unearmarked funds, see 

McCutcheon Br. 40-42, does not eliminate the danger of 

corruption or its appearance. Appellants’ argument that 

such discretion effectively “cleanses” any corruption 

risk ignores the contrary recognition in Buckley, and 

the specifi c Congressional fi ndings underlying BCRA, 

that “unearmarked contributions to political committees 
19

likely to contribute to [a given] candidate” can give rise to 

corruption or the appearance of corruption. 424 U.S. at 39. 

Committees’ spending patterns are generally suffi ciently 

predictable for a candidate to consider a contribution to 

be of some benefi t, whether fi nancial or political. For 

example, the McConnell Court noted that, before BCRA’s 

passage, candidates often “directed potential donors to 

party committees and tax-exempt organizations that 

could legally accept soft money” to circumvent direct 

contribution limits. Id. at 125. 

Appellants have offered no basis for calling into 

question Congress’s fi ndings that candidates solicited 

money contributions from individuals who had already met 

the base contribution limits in exchange for political favors. 

Such an arrangement clearly constitutes a corrupting quid 

pro quo arrangement. BCRA’s base contribution limits, 

anti-proliferation rule, and earmarking provisions alone 

cannot prevent its occurrence without the aggregate 

contribution limits. 

2. Appellants Proffered Closely Drawn 

Alternatives Fail To Prevent The AntiCorruption And Anti-Circumvention 

Goals Of The Current FECA Legislation.

Equally important, Appellants proffered alternatives 

do not protect against the risks at issue. See McCutcheon 

Br. 60–61. For example, the segregated non-transferable 

accounts proposed by McCutcheon provide no solution, 

id. at 61, because at some point the candidate will be 

able to use those funds and will know whom to thank 

and patronize for them. Putting aside that Appellants 

fail to provide suffi cient detail so that the operation of 
20

this untested arrangement could be understood, the 

potential fl aws in such an idea are manifest. For example, 

Appellants’ solution would mean that if an individual 

decides to contribute $1 million over the limit for individual 

donations, while those funds could not be drawn down 

immediately, they could be over time, creating a sustained 

influence whenever the candidate went to his or her 

account. The public perception of a donor ATM machine 

(that is, a segregated fund to which a candidate could turn 

again and again) would wreak the havoc on the system that 

campaign fi nance legislation is intended to avoid. 

Moreover, replacing the aggregate contribution 

limit with an aggregate contribution “threshold” for 

individuals, funds in excess of which would be deposited 

into a segregated account, id. at 18, ignores the fungibility 

of funds. For example, a committee could easily separate 

a contribution from a given individual that exceeds any 

aggregate threshold and put it towards some permissible 

but necessary use, thereby freeing contributions from 

two other individuals (neither of whom had yet reached 

the aggregate threshold) to fund a candidate’s campaign. 

From the candidate’s perspective, notwithstanding 

this maneuvering, it is still the fi rst individual’s large 

contribution that produced the benefi t. In addition, the 

practical diffi culties in monitoring and enforcing such a 

complex scheme cannot be ignored.

Similarly, solutions that focus solely on increased 

regulation of joint fundraising committees or transfers 

among political party committees, see id. at 60–61, fail 

to address the danger that other political committees 

could be easily and rapidly formed to accept individual 

contributions in order to circumvent the base contribution 

limits. Such a solution may also be impractical, as it would 
21

require a signifi cant amount of review of the accounting 

of these committees by the FEC to establish a violation. 

The damage would likely already be accomplished by the 

time the books were reviewed and any use of diverting 

accounting mechanisms understood.

The aggregate contribution limits enacted in BCRA 

are a constitutionally appropriate accommodation of 

Congress’s interest in preventing individuals from 

directing limitless funds to candidates in a manner 

that gives rise to corruption or its appearance, while 

preserving individuals’ ability to support multiple 

candidates.8

 BCRA itself is the more narrowly-tailored 

alternative by permitting biannual infl ation adjusted 

contribution limits and tightening limitations on conduitcontributions. A leading post-BCRA example is the 2008 

presidential election, in which more money was raised 

and spent than in any previous presidential campaign, 

while also increasing the overall number of contributors. 

See, e.g., Jeanne Cummings, 2008 Campaign Costliest 

8. Indeed, Appellants recognize that BCRA does not prevent 

individuals from supporting every federal candidate for election; 

they simply object that, the more candidates an individual chooses 

to support, the lower the amount of the average contribution. 

But, as this Court has held, “[t]he quantity of communication by 

the contributor does not increase perceptibly with the size of his 

contribution.” Buckley, 424 U.S. at 21. Specifi cally, Appellant 

McCutcheon states that he wishes to make twelve additional 

candidate contributions in the amount of $1,776, but may not do so 

because of BCRA’s aggregate limits. McCutcheon Br. 12. Although 

McCutcheon’s choice of the amount he would like to contribute has 

historic-patriotic associations, the signifi cance of the amount does 

not convert that prohibited act to a speech act deserving full First 

Amendment protection, like the burning of the American Flag. 

Were it otherwise, a restriction on Freedom Tower’s projected 

height of 1776 feet would raise First Amendment concerns.
22

in U.S. History, Politico (Nov. 5, 2008, 5:28 AM), http://

www.politico.com/news/stories/1108/15283.html. Surely, 

associational and free speech rights cannot have been so 

severely weakened when greater fi nancial participation 

by larger numbers of citizens was and still is possible.

Finally, Appellants also contend that because they can 

conceive of means by which the aggregate limitations could 

be circumvented, neither the aggregate contribution limits 

nor the goal of anti-circumvention can stand. McCutcheon 

Br. 44–48. This simply makes no sense. While those who 

seek to subvert the law may be able to fi nd a way to do 

so, it is little justifi cation for no law at all. The aggregate 

contribution limits seek to fi ll the void of both envisioned 

and unforeseen loopholes that would undermine the entire 

base contribution limit regime. Congress has done so in 

a manner that imposes minimal burden on citizens while 

preventing a host of potential ills. See McConnell, 540 

U.S. at 165-66.9

9. “Congress also made a prediction. Having been taught the 

hard lesson of circumvention by the entire history of campaign 

fi nance regulation, Congress knew that soft-money donors would 

react to § 323(a) by scrambling to fi nd another way to purchase 

infl uence. It was “neither novel nor implausible,” Shrink Missouri,

528 U.S. at 391, 120 S.Ct. 897, for Congress to conclude that 

political parties would react to § 323(a) by directing soft-money 

contributors to the state committees, and that federal candidates 

would be just as indebted to these contributors as they had been 

to those who had formerly contributed to the national parties. We 

“must accord substantial deference to the predictive judgments 

of Congress,” Turner Broadcasting System, Inc. v. FCC, 512 

U.S. 622, 665, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (plurality 

opinion), particularly when, as here, those predictions are so 

fi rmly rooted in relevant history and common sense. Preventing 

corrupting activity from shifting wholesale to state committees 

and thereby eviscerating FECA clearly qualifi es as an important 

governmental interest.”
23

3. Citizens United Does Not Alter The 

Propriety of Anti-Circumvention Measures 

Or Their Analysis.

Appellants and their amici suggest that the world 

after Citizens United should be one in which anything 

goes, because, they contend, money will now be funneled 

to independent expenditure-only PACs (“Super PACs”), 

putting candidates constrained by the aggregate 

contribution limit at some unspecified competitive 

disadvantage. See, e.g., McConnell Br. 26–27; see also 

McCutcheon Br. 51. 

This argument ignores the basic reasoning 

underpinning the Citizens United Court’s analysis—

namely, that independent expenditures do not give 

rise to corruption or the appearance of corruption 

because they are, by defi nition, not coordinated with a 

candidate. The “inherent opportunity” for corruption 

or its appearance presented by large contributions, as 

distinct from expenditures, is supported by Buckley and 

Congressional fi ndings, and not questioned by Citizens 

United. And it must not be forgotten that—in spite of 

Appellants’ penchant for deploying quotations from cases 

that concern expenditure not contribution limits—the 

limits in issue in this case apply only to contributions and 

have no application to expenditures. See Citizens United, 

558 U.S. 310.

Aggregate limits prevent the filtering of this 

unfettered money back into the heavily regulated 

campaign fi nance system, while respecting the freedom of 

expression that decisions from Buckley through Citizens 

United and Arizona Free Enterprise sought to protect. In 

other words, BCRA’s aggregate contribution limits serve 
24

the same anti-circumvention interest that was served by 

aggregate contribution limit upheld in Buckley. 

Moreover, Appellants’ argument assumes that there is 

an interest in limiting the robust political debate carried 

on by independent expenditure groups, suggesting that 

such debate is undesirably “negative.” See McCutcheon 

Br. 30. Whether the content of Super PAC speech is 

“desirable” or not is irrelevant. The very inquiry is at war 

with the premise of Citizens United.

Because “[m]oney, like water, will always fi nd an 

outlet,” McConnell, 540 U.S. at 224, aggregate limits 

became Congress’s attempt to prevent the undermining 

of the campaign fi nance regime through imposition of 

a reasonable restriction that did not unduly impinge on 

First Amendment rights. Appellants cannot establish that 

undue impingement exists and that the tangible harms to 

the campaign fi nance law will not be felt either through 

eliminating the aggregate limits altogether or imposing 

some untried supposed more closely drawn alternative.
25

CONCLUSION

For the reasons set forth above, and in the briefs 

of Appellee Federal Election Commission, amicus

Americans for Campaign Reform urges the Court to 

affi rm the judgment of the three-judge panel.

Dated: July 24, 2013

 Respectfully submitted,

Counsel for Amicus Curiae

CHARLES FRIED

Counsel of Record

1545 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-4636

fried@law.harvard.edu

ROBERT J. DWYER

ALANNA C. RUTHERFORD

BOIES, SCHILLER

& FLEXNER LLP

575 Lexington Avenue

New York, NY 10022

(212) 446-2300