No. 12-536

In The

Supreme Court of the United States

____________

Shaun McCutcheon and Republican National

Committee, Plaintiffs-Appellants

v.

Federal Election Commission

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief Opposing

Motion to Dismiss or Affirm

____________

Stephen M. Hoersting

Dan Backer

DB CAPITOL STRATEGIES, PLLC

Suite 2109

209 Pennsylvania Ave., SE

Washington, DC 20003

Jerad Wayne Najvar

NAJVAR LAW FIRM

Suite 100

1 Greenway Plaza

Houston, TX 77046

Of Counsel for McCutcheon

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for Appellants

January 14, 2013
Table of Contents

The Questions Presented Are Substantial.. . . . . . . . 1

I. The Biennial Limit on Contributions to

Non-Candidate Committees Is Unconstitutional for Lacking a Cognizable Interest as

Applied to Contributions to National-Party

Committees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. The Biennial Limit on Contributions to

Candidates Is Unconstitutional for Lacking a Constitutionally Cognizable Interest.. . 11

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

(i)
Table of Authorities

Cases

Buckley v. Valeo, 424 U.S. 1 (1976). . . . 1-6, 8-11, 13

California Medical Association v. FEC, 453 U.S.

182 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6-8, 11

FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001). . . . . . . . . . . . 7, 9

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Constitutions, Statutes, Regulations & Rules

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . 2, 6

(ii)
The Questions Presented

 Are Substantial

1

I.

The Biennial Limit on Contributions to NonCandidate Committees Is Unconstitutional for

Lacking a Cognizable Interest as Applied to

Contributions to National-Party Committees.

What was FEC2required to show to meetits burden

of proving a cognizable interest supporting the biennial

limit as applied to national-party committees? It

needed to show a specific risk of circumvention. See

Buckley v. Valeo, 424 U.S. 1, 38 (1976) (stating interest

as “evasion of the [base] contribution limitation” and

positing a specific mechanism under now-altered law).

J.S.7 n.2, 9, 17.

FEC could not prove a specific circumvention risk

with generalized, speculative allegations of possible

circumvention, nor could it prove an anti-circumvention interest by relying on an inapplicable anti-corruption(or anti-corruption-appearance)interest, J.S.15-16,

or with non-cognizable gratitude, access, influence, or

equalizing “interests,” as the lower court attempted,

J.S.16-17, 24-28.

1 The Jurisdictional Statement established that all questions presented are substantial. Given word limits, Appellants here focus on their challenges to the biennial limits on

contributions to national-party committees and candidates.

2 Appellants employ abbreviations established in their

Jurisdictional Statement (“J.S.”) and FEC’s Motion to Dismiss or Affirm (“Mot.”).
2

Rather, FEC needed to show a cognizable risk that

a cognizable conduit-contribution to a candidate could

actually result from anindividual’sunearmarked, baselimit contribution to a national-party committee, given

proper pro-rata attribution, J.S.22-23, and the anticircumvention prophylaxes, including

• affiliation rules preventing political-committee proliferation, J.S.13-14, 18,

• base limits on contributions to and by candidates,

political-party committees, and PACs, J.S.12-13,

18-20, and

• earmarking rules, J.S.20, 26-28.

Were the FEC able to prove that some attributable

conduit-contribution could make it from an individual

to a candidate through a base-level contribution to a

national-party committee, FEC would need to show

that the conduit-contribution would be cognizable, i.e.,

that it would be “‘large’” enough (based on a pro-rata

share of permissible contributions to and by an alleged

conduit entity) to trigger the anti-quid-pro-quo-corruption interest, J.S.17 (quoting Buckley, 424 U.S. at 26),3

and sufficient to justify the burden on First Amendment rights. Under Buckley’s analysis, individuals

must be able to get “massive” contributions to specific

candidates by “huge” contributions to political parties,

424 U.S. at 38, which FEC has not shown is possible

after the post-Buckley FECA amendments, J.S.17-19.

4

3 See also Citizens United v. FEC, 130 S.Ct. 876, 908

(2010)(“large contributions”trigger quid-pro-quo-corruption

risk).

4 Given FEC’s failure to prove a specific conduit-contribution risk, the facts that there are more PACs today and

(continued...)
3

The post-Buckley base limits on contributions to

national-party committees already address the anticircumventioninterest because, since the contributions

are not to a candidate, they don’t pose a quid-pro-quocorruption risk, J.S.7 n.2, and so are necessarily based

onthe anti-circumvention interest. J.S.15-16. The Conference Report on the post-Buckley FECA amendments

expressly says that the new base limits on contributions to non-candidate committees “‘restrict the opportunity to circumvent the $1,000 and $5,000 limits on

contributions to candidates.’” J.S.13 (citation omitted).

Consequently, in enacting the base limits, Congress

made the determination that contributions to parties

at these levels satisfied its interest in preventing circumvention, J.S.18-19,5

i.e., “massive” conduit-contributions could no longer travel to a candidate by reason

of “huge” contributions to party committees.

4

 (...continued)

that some identify favored candidates online, Mot.12, prove

nothing. Anyway, as applied here, there are not many more

national-party committees, and parties have always openly

favored their own candidates, despite which Buckley required that contributions to parties be “huge” to pose a possible circumvention risk, 424 U.S. at 38.

5 FEC argues that Congress’s establishment of a base

limit reflects no “implicit determination that contributions

below those limits pose no [circumvention] risk”; rather,

those “limits strike a balance.” Mot.12-13. But the Conference Report expressly said that the base limits were to “restrict . . . circumvention.” By setting a base limit, Congress

asserted its anti-circumvention interest only to that point,

making the interest non-cognizable beyond that point. A

non-cognizable interest is correctly considered as no interest, so doing an action posing no cognizable risk many times

creates no risk. Compare Mot.12 with J.S.19.
4

So how does FEC attempt to meet this burden of

proving a specific circumvention risk? How does it try

to prove a cognizable risk that a cognizable conduitcontribution can actually make it from a contributor

through a national-party committee to an intended

candidate, given base limits, pro-rata attribution, and

other prophylaxes, and absent earmarking?

FEC attempts to meet this burden by positing “[a]

particularly effective circumvention technique.” Mot.

11. But as shall be shown, FEC’s posited mechanism is

at oddswith this Court’s posited mechanism in Buckley

and so fails.

FEC first acknowledges that though the “[biennial]

limit was previously the only check on ‘huge contributions’ to a single political committee or political party,

FECA now contains specific limits that more directly

address that concern.” Mot.11 (emphasis added). Despite these FEC concessions that (a) the posited circumvention mechanism that this Court identified in

Buckley, 424 U.S. 1, required “huge” contributions to a

political party, id. at 38, (b) base limits eliminate such

“huge” contributions, and (c) base limits are better tailored for this purpose than biennial limits, FEC posits

that a “[a] particularly effective circumvention technique” identified in Buckley remains—“donat[ing] money to many different entities, each of which could then

make its own contribution to the candidate.” Mot.11-

12.

But FEC’s description of Buckley’s suggested “circumvention technique” is wrong for ignoring what was

central to Buckley’s suggested circumvention technique—the ability to “contribute massive amounts of

money to a particular candidate through the use of

unearmarked contributions to political committees
5

likely to contribute to that candidate, or huge contributions to the candidate’s political party.” 424 U.S. at 38

(emphasis added). FEC’s acknowledgment that “huge

contributions”to a party are no longer possible because

of post-Buckley “specific limits” (Mot.11) is incompatible with its claim that Buckley’s suggested “circumvention technique” survives as applied to national-party

committees.

FEC fails to discuss the actual operation of those

“specific limits,” enacted to restrict circumvention,

which fixed the problems that Buckley identified and

thereby eliminated any possible effectiveness of that

circumvention technique, J.S.12-14. Consequently,

FEC makes no effort to show what it must prove to

support the biennial limit as applied to national-party

committees—a specific circumvention risk.6

 FEC does

argue that “multiple contributions create the risk that

an individual . . . can circumvent the base limits by

channeling his money in such a way that a particular

target is likely to receive much more than the base limits.” Mot.13. In support, FEC points to Buckley’s posited mechanismof“contributing to political committees

likely to contribute to a particular candidate.” Mot.13.

But this ignores Buckley’s emphasis on “massive”

conduit-contributions and is a mere generalized assertion of a circumvention risk. FEC again fails to show

how an unearmarked, base-level contribution to a

6 Given FEC’s failure to show a cognizable risk that a

cognizable conduit-contribution to a candidate could actually result from an individual’s unearmarked, base-limit

contribution to a national-party committee,there is nothing

to trigger any anti-corruption interest because that interest

involves only the quid-pro-quo-corruption risk, which is

solely about contributions to candidates. J.S.15-16.
6

national-party committee can make it to a particular

candidate as a conduit-contribution, given pro-rata attribution, earmarking rules, and the other prophylaxes

all in place absent the biennial limits. FEC’s mere recitation of “channeling” and “transfers” without more,

Mot.13, fails its burden in light of the post-Buckley

FECA amendments.

Failing to show what it must—a cognizable conduitcontribution risk—FEC makes tangential arguments.7

FEC argues that the biennial limits, as applied, are

justified by the “anti-corruption purpose” of preventing

“‘improper influence’ . . . over the party’s elected officials” by “‘an individual [who] might contribute $3.5

million to one party, and its affiliated committees in a

single election cycle.’” Mot.13 (citations omitted). This

is wrong on multiple levels. FEC must show an anticircumventioninterest, not an anti-corruptioninterest,

Buckley, 424 U.S. at 38 (“evasion”); FEC’s switch to a

corruption theory virtually concedes that it has failed

to prove a conduit-contribution risk. Buckley’s concern

was about “massive” conduit-contributions getting

through parties (from “huge” contributions to a party)

to candidates, not some vague “influence.” Id. And “influence” is a forbidden theory of “corruption” (or its

appearance). “When Buckley identified a sufficiently

important governmental interest in preventing corruption or the appearance of corruption, that interest was

limited to quid pro quo corruption.” Citizens United,

130 S.Ct. at 909. “Reliance on a ‘generic favoritism or

influence theory . . . is at odds with standard First

Amendment analyses because itis unbounded and sus7 FEC’s failure to show a “circumvention mechanism,”

Mot.11-12, makes FEC’s tangential arguments insufficient,

though some are addressed.
7

ceptible to no limiting principle.’” Id. at 910 (citation

omitted). FEC’s implicit refusal here to be governed by

Citizens Unitedis made expresswhen FEC asserts that

“Appellants’ reliance on Citizens United [for the legal

proposition that cognizable corruption is limited to

quid pro quo] is misplaced.” Mot.17 n.2. FEC’s argument demonstrates—without more required—thatthis

question is substantial and should be fully briefed and

decided, in part to clarify FEC’s position and for this

Court to reaffirm its Citizens United holding in this

context.

FEC argues that a plurality and concurrence in

California Medical Association v. FEC, 453 U.S. 182

(1981)(“CMA”), recognized that unlimited donations to

a PAC could allow circumvention of the base and biennial limits. Mot.14. But FEC misses the very point of

the case, i.e., that the base limit was enacted and upheld precisely to foreclose that circumvention. J.S.12-

14. The base limit remaining in place, the circumvention risk of which CMA spoke remains foreclosed by

that base limit.8 The same is true of FEC’s argument

that FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001) (“Colorado-II”), recognized a circumvention risk, Mot.18, while ignoring the

fact that the case upheld a limit on party expenditures

to foreclose that circumvention. J.S.23 n.8.

FEC disputes Appellant’s use of “prophylaxis-onprophylaxis” (from FEC v. Wisconsin Right to Life, 551

U.S. 449, 479 (2007)) to describe FECA’s anti-circum8

 The biennial limit was not at issue in CMA, so FEC’s

argumentthat“a majority”“recognized”that base and biennial limits can coexist is at best dicta. But FEC must prove

each limit is supported by a cognizable interest. FEC’s burden is not foreclosed by non-court-opinion dictum.
8

vention scheme. Mot.15. Appellants have already addressed the fact that such a redundant approach is

foreclosed by the tailoring requirement under either

strict or intermediate scrutiny, J.S.17, which FEC fails

to note. Under either scrutiny, if one prophylaxis addresses an asserted interest, that interest may not be

recycled to justify another prophylaxis. J.S.17.

FEC argues that the biennial limits aren’t really

“prophylaxis-on-prophylaxis” because the base limits

aren’t prophylactic. Mot.16. Citizens United said otherwise:“[R]estrictions on direct contributions are preventative, because few if any contributions to candidates

will involve quid pro quo arrangements.” Citizens

United,130 S.Ct. at 908.

And FEC’s resort to a broadly conceived “appearance of corruption” interest, Mot.16 (in a curious argumentthatFECA does not contain layers of prophylaxes

to prevent circumvention), is another rejection of Citizen United’s restriction of cognizable “corruption” to

quid pro quo—which necessarily requires that any cognizable corruption-appearance interest must entailthe

appearance of quid-pro-quo corruption (which is not

really at issue here anyway because an anti-circumvention interest is required to support biennial limits).

Buckley’s statement that the biennial limit was a

“corollary” of the sole base contribution limit then in

effect, 424 U.S. at 38, doesn’t help FEC, Mot.17, because the statement applied to a now-altered FECA

scheme, J.S.12-14. Since the “ceiling” in Buckley actually was a base limit for contributions to non-candidate

committees, J.S.7, it was a corollary of a base limit in

that respect. But post-Buckley FECA amendments

changed that. J.S.12-14.
9

Nonetheless, Buckley yet required a mechanism for

“massive” conduit-contributions. That mechanism was

eliminated by the post-Buckley FECA amendments,

424 U.S. at 38, so FEC must yet prove such a mechanism.

FEC argues that Buckley recognized a circumventionrisk from “unearmarked contributions.”Mot.17-18.

But that was based on a posited circumvention mechanism allowing “massive” conduit-contributions to make

it to candidates under now-altered FECA provisions.

J.S.9-11. And the recognition in Colorado-II, 533 U.S.

431, that earmarking was not the limit of the government’s permissible anti-circumvention measures,

Mot.18, does not eliminate the fact that FECA has

many anti-circumvention measures (including the

party-expenditure limit upheld in Colorado-II, J.S.23

n.8), and FEC has not proved that the biennial limits

are supported by an anti-circumvention interest after

the operation of those other prophylaxes.

Appellants argued that the biennial limit really

relies on a forbidden equalizing interest. J.S.24. FEC

claims “Buckley recognized that contribution limits . . .

are not speech-equalizing measures.” Mot.18 (citing

424 U.S. at 25-26 & n.26). Buckley recorded the government’s asserted equalizing interest in support of the

$1,000 base limit on contributions to candidates. This

Court later rejected that interest, 424 U.S. at 48-49,

but found it “unnecessary” to consider the asserted

equalizing interest because the anti-corruptioninterest

was sufficient to support the base limit, id. at 26.

Buckley did note that “[c]ontribution limitations alone

would not reduce the greater potential voice of affluent

persons . . . who would remain free to spend unlimited

sums directly to promote candidates,” id. at 26 n.26
10

(emphasis added), but that does not say that contribution limits cannot be employed to pursue the illegitimate equalizing interest, as the government asserted

it was doing. Rather, Buckley merely said that the base

limit “alone” would notfully achieve the leveling objective. But where, as here, a limit is not justified by any

anti-corruption or anti-circumvention interest, that

forbidden equalizing interest stands exposed and must

be rejected.

FEC argues that strict scrutiny is inapplicable because Buckley recognized that the old biennial ceiling

“‘does impose an ultimate restriction upon the number

of candidates and committees with which an individual

may associate himself by means of financial support,’

but did not apply strict scrutiny.” Mot.10 (quoting 424

U.S. at 38). Buckley did not state what scrutiny it applied, and FEC’s assumption that it applied scrutiny

applicable to contributions assumes the answer to whether biennial limits should be treated more like expenditures than contributions for scrutiny purposes. Buckley’s observation of the association-limiting effect of the

ceiling does not address what scrutiny ought to apply,

but its observation that the ceiling does limit association counters any notion that it does not, because the

true focus is on how many recipients one may associate

with at the full base-contribution level, not at de minimis amounts. Anyway, the level of scrutiny ought to be

higher than that for base-level contributions because

the biennial limit is differentin kind and more serious.

J.S.8-9. But ultimately it doesn’t matterwhichscrutiny

applies because FEC fails to show the necessary anticircumvention interest, required under any scrutiny.

J.S.5-9.
11

Notably, FEC abandons arguments central to the

lower-court opinion, including the court’s

• posited interest based on a contributor’s ability to

“give half-a-million dollars in a single check to a

joint fundraising committee,” amounting to an

equalizing interest, J.S.26 (citation omitted),

• wreath-of-gratitude interest, J.S.26 (citation omitted), and

• speculative “mechanism for circumventionrel[ying]

on individuals violating the [earmarking] law,”

J.S.26-27.

Being abandoned, these should not be considered. Cf.

Citizens United, 130 S.Ct. at 908, 912 (FEC abandoned

anti-distortion-interest argument).

In sum, FEC fails to show that Buckley forecloses

this as-applied challenge or that—given Buckley’s analysis and FEC’s failure to show a cognizable circumvention risk from allowing base-level contributions to

national-party committees without biennial limits—

this question is insubstantial.

II.

The Biennial Limit on Contributions to

Candidates Is Unconstitutional for Lacking a

Constitutionally Cognizable Interest.

FEC had to show a specific risk of circumvention to

support the biennial limit on contributions to candidates. See Part I. The court below ignored this challenge, despite its unique nature, the important distinctions between the two claims here, the fact that the

two biennial limits don’t rise or fall together, and the

fact that Buckley didn’t even posit a mechanism by

which contributions to candidates could pose a circumvention risk by allowing “massive” conduit-contribu-
12

tions to reach candidates as a result of base-level contributions to candidates. J.S.5, 32-37.

FEC claims there is a conduit-risk, but fails to

prove a specific mechanism, given the existing prophylaxes absent the biennial limits. The core of FEC’s argument is that “a contributor can give [$2,500 per election] each to a number of candidates who . . . can give

to one candidate (or . . . party).” Mot.20. That is true

but fails FEC’s burden to show a specific, cognizable

conduit-contribution risk. Applying Buckley’s analysis,

$2,500 is not a “huge” contribution to put in the purported conduit, candidates are not proven to be “likely”

to give to certain other candidates, there is no proliferation of candidate committees, and earmarking is illegal, so there is no cognizable risk that such modest

base-level contributions permit individuals to “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions” to

other candidates. 424 U.S. at 38. See J.S.33-34. This is

especially true given the necessary pro-rata attribution

of contributions to and by candidates, which FEC studiously avoids in its brief. Congress already asserted

its anti-circumvention interest to the extent of a $2,000

(per election) limit on contributions from one candidate

committee to another. J.S.33. FEC’s reference to a “tally” system once used by a state party not involved here,

Mot.20, proves nothing. There is no evidence here that

any candidate to which Mr. McCutcheon contributes

makes contributions to any other candidate or to any

political party, let alone one that keeps such a “tally.”

And to the extent such a system relies on forbidden “influence” and “gratitude” theories of corruption,itwould

be non-cognizable.
13

In sum, no proven anti-circumvention interestjustifies a biennial restriction. FEC fails to show that Buckley forecloses this challenge or that the issue is insubstantial.

Conclusion

This Court should note probable jurisdiction.

Stephen M. Hoersting

Dan Backer

DB CAPITOL STRATEGIES,

PLLC

Suite 2109

209 Pennsylvania Ave., SE

Washington, DC 20003

Jerad Wayne Najvar

NAJVAR LAW FIRM

1 Greenway Plaza, Ste.100

Houston, TX 77046

Of Counsel for McCutcheon

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for Appellants

January 14, 2013