9

Contrary to the Fourth Circuit’s conclusion, the
court in California Medical Association did not hold
that contributions to PACs receive lower protections
under the First Amendment than direct contributions
to candidates. Rather, the court simply held that the
fact that contributions to PACs are not given in the
first instance to the candidate does not transform it
into an expenditure. 453 U.S. 182, 195 (“The type of
expenditures that this Court in Buckley considered
constitutionally protected were those made inde-
pendently by a candidate, individual, or group in order
to engage directly in political speech.”).

The California Medical Association (“CMA”) had
challenged the limit on the amount individuals may
contribute to PACs. In doing so, it based its argument
on a “speech by proxy” theory — that because its PAC
was essentially the mouthpiece of CMA, contributions
from CMA members to the PAC were, it argued, essen-
tially expenditures of those members, the limitation of
which would violate the rule in Buckley (“The absence
of prearrangement and coordination of an expenditure
with the candidate or his agent not only undermines
the value of the expenditure to the candidate, but also
alleviates the danger that expenditures will be given
as a quid pro quo for improper commitments from the
candidate.”). 424 U.S. at 47. This Court rejected
CMA’s argument because its PAC “is a separate legal
entity that receives funds from multiple sources and
engages in independent political advocacy.” California
Medical Association, 453 U.S. at 183. The instant case
does not challenge this. Petitioners have not argued


iv

TABLE OF AUTHORITIES — Continued

STATUTES

11 C.FR. 100.14(c)
52 U.S.C. § 30101(15)..
52 US.C. § 80116(a) oo. eee eeeeeeeteeeeteeeeeee

CALIF. GOV. CODE, § 5100........ccccceceeseeseeteeteeeteeeeeeeeeeee 1



13

means of fighting quid pro quo corruption and its ap-
pearance, it must be struck.

+

CONCLUSION

Like individuals and other associations, political
committees’ speech is entitled under our Constitution
to the full protection of the First Amendment, the im-
portance of which is amplified in the context of election
campaigns. Because the multi-candidate committee
rules in 52 U.S.C. § 30116(a)(4) represent an unconsti-
tutionally arbitrary and irrational infringement on this
speech, they cannot survive “closely drawn” scrutiny.
Amicus Curiae urges this Court to hear Petitioners’
case so that our precious freedoms are not sacrificed to
the Fourth Circuit’s wayward “balancing” test which
absolves the government of its burden to tread care-
fully on our core First Amendment rights.

Respectfully submitted.

CHARLES H. BELL, JR.
Counsel of Record

TERRY J. MARTIN

BELL, MCANDREWS &
HILtacuk, LLP

455 Capitol Mall, Suite 600

Sacramento, CA 95814

Telephone: (916) 442-7757

cbell@bmhlaw.com

Counsel for Amicus Curiae


5

not absolute,” the government must “demonstrate a
sufficiently important interest” for its law and “employ
means closely drawn to avoid unnecessary abridge-
ment of associational freedoms.” Buckley, 424 U.S. at
25 (internal quotations and citations omitted). In the
instant case, the Fourth Circuit has absolved the gov-
ernment of the need to put forth a permissible interest
to justify the temporal shifting of contribution limits
as applied to PACs, and the law’s relationship to any
permissible government interest in this area is at best
irrational.

This Court has repeatedly admonished that “pre-
venting corruption or the appearance of corruption are
the only legitimate and compelling government in-
terests thus far identified for restricting campaign
finances.” Davis v. FEC, 554 U.S. 724, 741 (2008) (quot-
ing FEC v. Nat'l Conservative Political Action Comm.,
470 U.S. 480, 496-497 (1985)); accord McCutcheon v.
FEC, 134 S.Ct. 1484, 1441 (2014). In order to protect
the necessary breathing space for core political speech,
the anti-corruption interest has been held to be only of
one constitutionally-permissible kind, which is to tar-
get quid pro quo arrangements. Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 359 (2010) (“The fact
that speakers may have influence over or access to
elected officials does not mean that these officials are
corrupt.”). That phrase, quid pro quo, “captures the
notion of a direct exchange of money for favors.”
McCutcheon, 134 S.Ct. at 1441. This Court has addi-
tionally made clear that campaign finance regulations
that do not aim to prevent quid pro quo corruption, but


2

Amendment law. The Bipartisan Campaign Reform
Act (“BCRA”) cuts in half the amount that certain po-
litical committees may contribute to political parties
once those committees have been registered with the
Federal Election Commission (“FEC”) for six months.
See 52 U.S.C. § 30116(a)(1)-(a)(4). The United States
Court of Appeals for the Fourth Circuit (“Fourth Cir-
cuit”) upheld this temporal reduction in contribution
limits on the grounds that BCRA also increases the
amount that such committees may contribute to can-
didates upon reaching that six-month mark. Peti-
tioner’s Appendix, A-27 to A-29.

For reasons that follow, Amicus Curiae believes
that the Fourth Circuit has erred and that such a reg-
ulation violates the First Amendment.

Election campaigns invoke the most fundamental
of our First Amendment rights. The spending of re-
sources to support candidates in the form of political
contributions represents an especially strong invoca-
tion of the right to the freedom of speech and associa-
tion guaranteed by our Constitution. Notwithstanding
this Court’s repeated instructions to the lower courts
to require governments that enact laws that infringe
on such speech and associational rights to prove that
they are “closely drawn” to combat quid pro quo cor-
ruption and its appearance, the Fourth Circuit allowed
the FEC to rely on a simple balancing of what it per-
ceived to be the benefits and burdens of the law com-
pared to other dissimilar, non-shifting contribution
limits that have been held constitutional, without


1

STATEMENT OF
INTERESTS OF AMICUS CURIAE'

Amicus Curiae VENTURA COUNTY REPUBLI-
CAN PARTY is the official political party organization
of the state ballot qualified Republican Party in Ven-
tura County, California. California Government Code
section 5100. Amicus Curiae is a subordinate political
party committee of the state political party, Cali-
fornia Republican Party, 52 U.S.C. § 30101(15); 11
C.E.R. 100.14(c). Amicus Curiae is subject to contribu-
tion limits on contributions it may lawfully accept un-
der 52 U.S.C. § 30116(a)(1)(C) [$5,000 per calendar
year per donor aggregate limit] and § 30116(a)(1)(D)
[further limited by aggregate limit of $10,000 per cal-
endar year per donor applicable to state political par-
ties and subordinate party committees of a state
political party]. Thus, Amicus Curiae is directly af-
fected by the application of the limits of 52 U.S.C.
§ 30116(a)(2)(C) on contributions by “political commit-
tees” and “multi-candidate political committees.”

+

SUMMARY OF THE ARGUMENT

Amicus Curiae agrees with the Petitioners that
this case also presents a substantive issue of First

1 Pursuant to Sup. Ct. R. 37.6, Amicus Curiae and its counsel
state that none of the parties to this case nor their counsel au-
thored this brief in whole or in part, and that no person or entity
made a monetary contribution specifically for the preparation or
submission of this brief. Amicus Curiae files this brief with the
written consent of all parties, copies of which are on file in the
Clerk’s Office, with less than 10 days notice.


4

Comm’n, 134 S.Ct. 1434, 1441 (2014) (quoting Monitor
Patriot Co. v. Roy, 401 US. 265, 272 (1971)). Contribu-
tion limits burden these fundamental First Amend-
ment interests by restricting the amount a donor may
contribute to aid his or her candidate of choice in dis-
seminating an electoral message. Buckley v. Valeo, 424
US. 1, 24-25 (1976). Therefore, in Buckley, the Su-
preme Court characterized contributions as invoking
both the right to freedom of speech and its implied
right of association, and determined that limits on
such contributions are subject “to the closest scrutiny.”
424 US. at 25 (quoting NAACP v. Ala. ex rel. Patterson,
357 U.S. 449, 460-61 (1958)). This close scrutiny ap-
plies not only when the contribution limit is directed
at an individual donor, but also when it is directed at
an association — specifically a political action commit-
tee (“PAC”). Fed. Election Comm'n v. Nat'l Conserva-
tive Political Action Comm., 470 U.S. 480, 495 (1985)
(“To say that their collective action in pooling their re-
sources to amplify their voices is not entitled to full
First Amendment protection would subordinate the
voices of those of modest means as opposed to those
sufficiently wealthy to be able to buy expensive media
ads with their own resources.”).

The law at issue, 52 U.S.C. § 30116(a)(4), cuts in
half the amount that multi-candidate PACs can con-
tribute to political party committees once the PAC has
been registered with the Federal Election Commission
for six months, while simultaneously increasing the
amount they can contribute to candidates. While the
right to speak, associate and participate in politics “is


No. 16-109

In The
Supreme Court of the Anited States

+

STOP RECKLESS ECONOMIC INSTABILITY CAUSED
BY DEMOCRATS; TEA PARTY LEADERSHIP FUND;
and ALEXANDRIA REPUBLICAN CITY COMMITTEE,

Petitioners,

v.

FEDERAL ELECTION COMMISSION,
Respondent.

+

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit

+

BRIEF OF AMICUS CURIAE FOR VENTURA
COUNTY REPUBLICAN PARTY IN SUPPORT
OF PETITION FOR WRIT OF CERTIORARI

+

CHARLES H. BELL, JR.
Counsel of Record

TERRY J. MARTIN

BELL, MCANDREWS &
HILTACHK, LLP

455 Capitol Mall, Suite 600

Sacramento, CA 95814

Telephone: (916) 442-7757

cbell@bmhlaw.com

August 23, 2016 Counsel for Amicus Curiae

COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM



7

important interest and means closely drawn to achieve
it). The amount a PAC may contribute to candidates
nearly doubles, while the amount it may contribute to
political parties is slashed by nearly half. Thus, the
law treats such committees inconsistently once they
reach that six-month mark. This is not “closely drawn”
to target corruption. No contribution limit ever upheld
by this Court has inconsistently shifted in amounts de-
pending on how long the actor has been registered with
the government, or for any other reason. The law must
therefore be struck.

II. GROUP ASSOCIATIONS INCLUDING PO-
LITICAL ACTION COMMITTEES ARE EN-
TITLED TO FULL FIRST AMENDMENT
PROTECTION AND THEIR RIGHTS TO
CORE POLITICAL SPEECH AND ASSOCIA-
TION MAY NOT BE SUBJECT TO A SPECU-
LATIVE BALANCING TEST.

The Fourth Circuit threatens to endanger group
speech with its Opinion that subverts associations
joined for a common political purpose. In doing so,
it relies on a misapplication of this Court’s decision in
California Medical Association v. FEC, 453 U.S. 182
(1981). The Fourth Circuit stated in its Opinion that:

California Medical Association makes clear
that limitations on contributions from per-
sons to PACs, even PACs that engage in advo-
cacy and ‘proxy speech,’ received less First
Amendment protections than direct individ-
ual contributions to candidates. Because this


6

instead “pursue other objects impermissibly inject the
Government into the debate over who should govern.
And those who govern should be the /ast people to help
decide who should govern.” McCutcheon, 134 S.Ct. at
1441-1442 (emphasis in original).

The Fourth Circuit, however, did not even attempt
to explain how reducing the amount that established
political committees may contribute to political parties
after they have been registered for six months furthers
the Government’s interest in combatting quid pro quo
corruption and its appearance. Moreover, the Fourth
Circuit’s reasoning — that Congress may decrease
limits on contributions to political parties because it
simultaneously increased limits on contributions to
candidates — is inconsistent with this Court’s holding
in McCutcheon, 134 S.Ct. at 1449, that contributors
cannot be subjected to such tradeoffs among consti-
tutionally protected activities (“As we have recently
admonished, the Government may not penalize an in-
dividual for ‘robustly exercis[ing]’ his First Amend-
ment rights.”) (quoting Davis v. FEC, 554 U.S. at 739).

The PAC regulation at issue lacks any justification
at all. It is an irrational infringement on Petitioners’
rights to freedom of speech and association. It is hard
to imagine how, and the Fourth Circuit has relieved the
government of its obligation to explain why, a political
committee that satisfies § 30116(a)(4)’s Receipt and
Contribution Requirements and has been registered
for six months, experiences inconsistent changes in
its speech rights. Randal v. Sorrell, 548 U.S. 230,
231 (2006) (government bears the burden of proving


3

any reference to quid pro quo corruption and its ap-
pearance.

Further, the Fourth Circuit rested its decision on
a sharp misreading of this Court’s decision in Califor-
nia Medical Association v. Fed. Election Comm’n, 453
U.S. 182 (1981). In doing so, it expressly diminished
the rights of group associations formed to speak to-
gether and held that such speech is less protected than
that of individuals. Should the Fourth Circuit’s opin-
ion below be allowed to stand, lower courts would be
free to uphold laws that infringe on the ability of citi-
zens to join together for common political purposes. It
would also further starve political parties already dis-
advantaged by the federal regulatory scheme of re-
sources necessary to disseminate their messages and
support the electoral campaigns of their members.

For these reasons set forth more fully below, Ami-
cus Curiae respectfully urges this Court to grant the
petition for writ of certiorari.

+

ARGUMENT

I. THE FOURTH CIRCUIT’S DECISION MAKES
NO EFFORT TO FOLLOW THIS COURT’S
PRECEDENTS IN JUSTIFYING AN IRRA-
TIONAL LAW THAT INFRINGES UNNEC-
ESSARILY ON CORE POLITICAL SPEECH.

The First Amendment “has its fullest and most
urgent application precisely to the conduct of cam-
paigns for political office.” McCutcheon v. Fed. Election


iii

TABLE OF AUTHORITIES

Page
CASES
Buckley v. Valeo, 424 U.S. 1 (1976) wees passim
California Medical Association v. Fed. Election

Comm'n, 453 U.S. 182 (1981)... 3, 7,9, 10,11
Citizens United v. Fed. Election Comm’n, 558

US. 810 (2010) wee ceeseeeeeeeeeneeeeeeseeteeeeees 5,8
Colorado Republican Fed. Campaign Comm. v.

Federal Election Commission, 518 U.S. 604

(1996) eee ceeseeteeeeeeseseteeeeseseseeeeesaseeeeeeeseseeeeeeees 12
Davis v. Fed. Election Comm’n, 554 U.S. 724

(2008) ...eeeeecesesceeeeeseseteeeeeeseseseeeeerseeeeeeeeeeasaeeeeeseeseee 5,6
Fed. Election Comm'n v. Nat'l Conservative Po-

litical Action Comm., 470 U.S. 480 (1985)........ 4,5,8
First National Bank of Boston v. Bellotti, 435

US. 765 (1978) woe ccceeeeeceeseseeeseeeseseseeseesseneneees 8
McCutcheon v. Fed. Election Comm’n, 134 S.Ct.

1484 (2014) cece ceeeeeteeeeeeeneeeeees 3, 5, 6, 12
Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)........... 4
NAACP v. Ala. ex rel. Patterson, 357 U.S. 449

(1958) eee esesene cece csesenetecseseescececsesesseesseseeeeeees 4
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377

(2000) ....eeeeceeseeeeceeseseseeeteeseseeetseseseeeeeteeseseeeeeesees 11, 12
Randal v. Sorrell, 548 U.S. 230 (2006) «0... cece 6,12

United States v. Natl Treasury Emps. Union,
518 U.S. 454 (1995) oo. cee eee eeeseeneeeeseseeneeeees 11


10

that they should be free from any limitations on con-
tributions from their members to their PACs. Rather,
they argue that they should be free from arbitrary lim-
its that shift depending only on how long the PAC has
been registered with the FEC.

California Medical Association is the case on
which the Fourth Circuit rests its decision, and, dis-
turbingly, is only relevant to the instant matter in
that it involved a limit on amounts that individuals
may contribute to PACs. It did not involve a change in
those limits over time (or for any other reason), it did
not involve a change in the amount that PACs may
contribute to a political party committee, and it did
not involve a change in the amount that PACs may
contribute to candidates. In the relevant aspects,
therefore, the case has no application here. Indeed,
California Medical Association highlights the Fourth
Circuit’s error. In that case, the court discussed the
governmental interest served by the contribution limit
— fighting corruption by preventing circumvention of
the base limits. Id. at 198 (“If appellants’ position —
that Congress cannot prohibit individuals and un-
incorporated associations from making unlimited con-
tributions to multicandidate political committees —
is accepted, then both these contribution limitations
could be easily evaded.”). In the instant case, by con-
trast, no reason has been given for the differing treat-
ment of multi-candidate PACs before and after the
six-month registration mark. This means that the law
arbitrarily singles out for stricter regulation a form of


12

existence of the disease sought to be cured.’ . . . It must
demonstrate that the recited harms are real, not
merely conjectural.”). The FEC may not simply rely on
an implied “corruption” interest — the only permissible
one that could justify the regulation at issue — and be
done with it to justify a burden on the fundamental
right to speak and associate via contributing to politi-
cal committees. Nixon v. Shrink Missouri Government
PAC, 528 U.S. at 392 (quoting and discussing Colorado
Republican Fed. Campaign Comm. v. FEC, 518 U.S.
604, 616 (1996) (opinion of Breyer, J.)). Rather, the gov-
ernment must assert the anti-corruption interest in its
proper form and the contribution limit must be appro-
priately tailored to vindicate that interest, otherwise it
is unconstitutional. McCutcheon, 134 S.Ct. at 1444; see
also Randall v. Sorrell, 548 U.S. 230, 248 (2006).

The law at issue here is an irrational means of
fighting corruption and its appearance. If a law that
restricts political speech does not avoid unnecessary
abridgement of First Amendment rights, it cannot sur-
vive “rigorous” review. McCutcheon at 1446 (quoting
Buckley at 25). Here, the Fourth Circuit has not
argued that a PAC that has reached the six-month
registration mark demonstrates an increase in the
corruptive nature of its PAC contributions to political
parties and at the same time a decrease in the corrup-
tive nature of its PAC contributions to candidates. The
concept alone makes one scratch one’s head in confu-
sion. Because the law lacks an appropriately-tailored


QUESTION PRESENTED

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............cccccceeseeeeees

STATEMENT OF INTERESTS OF AMICUS CU-
RIAE...

SUMMARY OF THE ARGUMENT...

ARGUMENT... cecccscsssseseseseseeeeeenenesessssesseneneeneneies

I.

II.

THE FOURTH CIRCUIT'S DECISION
MAKES NO EFFORT TO FOLLOW THIS
COURT’S PRECEDENTS IN JUSTIFYING
AN IRRATIONAL LAW THAT INFRINGES
UNNECESSARILY ON CORE POLITICAL
SPEECH... cccsceseseesesseeseseesesensssesesseseenenes

GROUP ASSOCIATIONS INCLUDING PO-
LITICAL ACTION COMMITTEES ARE EN-
TITLED TO FULL FIRST AMENDMENT
PROTECTION AND THEIR RIGHTS TO
CORE POLITICAL SPEECH AND ASSO-
CIATION MAY NOT BE SUBJECT TO A
SPECULATIVE BALANCING TEST.........

CONCLUSION ......ccecscsseseseseseseeeseeeenesenesesseseeeeeeees


QUESTION PRESENTED

May the Government categorically cut in half the
amount that political committees may contribute to
political parties once they have been registered with
the FEC for six months, solely on the grounds that
it simultaneously (and inconsistently) increases the
limit on contributions to candidates at that point,
without any explanation as to how that blanket reduc-
tion furthers the Government’s interest in combatting
corruption?


8

case does not involve an individual contribu-
tor, the First Amendment, under these Su-
preme Court precedents, provides Stop PAC
and American Future with limited rights, not
offended here, with respect to their ability to
make political contributions. Accordingly, the
Court concludes that FECA’s six-month wait-
ing period, and the limited restriction that it
places on financial contributions from PACs,
do not constitute a First Amendment violation
of Stop PAC and American Future’s ability to
associate with the candidates whom they sup-
port.

Op. at p. 50.

This is patently false and contrary to Supreme
Court precedent. This Court has stated that PACs en-
joy the same First Amendment protections as indi-
viduals. Fed. Election Comm’n v. Nat'l Conservative
Political Action Comm., 470 U.S. 480, 494 (1985) (“We
also reject the notion that the PACs’ form of organi-
zation or method of solicitation diminishes their en-
titlement to First Amendment protection. The First
Amendment freedom of association is squarely impli-
cated in these cases.”). This idea is grounded in this
Court’s observation that “associations, like individuals,
contribute to the discussion, debate, and the dissemi-
nation of information and ideas that the First Amend-
ment seeks to foster.” Citizens United v. Fed. Election
Comm'n, 558 U.S. 310, 343 (2010) (quoting First Na-
tional Bank of Boston v. Bellotti, 435 U.S. 765, 783
(1978)).


11

speech that impacts its interests in the same way,
which is not permissible under the First Amendment.

The Fourth Circuit attempts to draw analogies to
the contribution limits at issue in Buckley and Califor-
nia Medical Association to argue that, under a totality
of the circumstances analysis, those at issue here are
less burdensome, and therefore must be constitution-
ally permissible. This conclusion relies on speculation
and assumptions about an association’s political prior-
ities. In reaching it, the Fourth Circuit again ignores
the relevant aspect of this action: that the shifting of
contribution limits at the six-month mark makes no
sense, regardless of whether it believes the committee
is ina more or less advantageous position following the
six-month mark than it was before it had been regis-
tered with the FEC for six months, or compared to
dissimilar non-shifting limits held constitutional as
applied to other political actors.

No balancing of benefits and burdens has ever
been held sufficient to carry a First Amendment bur-
den in the realm of core political speech. Such a con-
cept lets the government “off the hook” of articulating
a specific, concrete interest for the regulation, and
proving that its selected means are appropriately tai-
lored. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 392
(2000) (“We have never accepted mere conjecture as
adequate to carry a First Amendment burden.”);
United States v. Nat'l Treasury Emps. Union, 513 US.
454, 475 (1995) (“[W]hen the Government defends a
regulation on speech as a means to . . . prevent antici-
pated harms, it must do more than simply ‘posit the