No. 12-536 

In the Supreme Court of the United States 

_____________ 

SHAUN MCCUTCHEON AND REPUBLICAN 

NATIONAL COMMITTEE, 

 Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellees, 

_____________ 

On Appeal from the United States District 

Court for the District of Columbia 

____________ 

AMICI CURIAE BRIEF OF 

THE THOMAS JEFFERSON CENTER FOR 

THE PROTECTION OF FREE EXPRESSION 

AND THE MEDIA INSTITUTE 

__________ 

IN SUPPORT OF APPELLANTS 

Thomas E. Hogan J. Joshua Wheeler* 

Baker Hostetler LLP Clayton N. Hansen 

Washington Square The Thomas Jefferson 

1050 Connecticut Ave., NW Center for the Protection 

Washington, DC 20036 of Free Expression 

P: 202-861-1577 400 Worrell Drive 

thogan@bakerlaw.com Charlottesville, VA 22911 

 P: 434-295-4784 

 jjw@tjcenter.org 

*Counsel of Record for 

Amici Curiae


TABLE OF CONTENTS

 Page 

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

STATEMENT OF INTEREST OF AMICI

CURIAE ......................................................................1 

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

DISCUSSION .............................................................3 

I. The Aggregate Limit on Contributions to 

Candidates Should Be Subject to Strict 

Scrutiny ........................................................... 3 

A. Speech in the Electoral Context Is 

Traditionally Accorded the Highest 

Protection................................................... 4 

B. The Aggregate Limit on Contributions to 

Candidates Imposes a Significant Burden 

on Core Political Speech by Prohibiting 

Individuals from Engaging in The Symbolic 

Act of Contributing to Their Preferred 

Candidates ................................................ 6 

C. The Aggregate Contribution Limit Hinders 

the First Amendment Right to Associate . 8 
ii 

II. The Aggregate Contribution Limit is not 

Narrowly Tailored to Combat Electoral 

Corruption ....................................................... 9 

CONCLUSION..........................................................11 
iii 

TABLE OF AUTHORITIES 

Cases Pages 

Am. Broad. Co., Inc. v. Blackwell, 479 F. Supp. 2d 

719 (S.D. Ohio 2006)................................................... 4 

Brown v. Hartlage, 456 U.S. 45 (1982) ...................... 5 

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

Burson v. Freeman, 504 U.S. 191 (1992) ................... 4 

Citizens United v. Fed. Election Comm’n, 558 U.S. 

310 (2010).................................................................. 10 

Colo. Republican Fed. Campaign Comm’n v. Fed. 

Election Comm’n, 518 U.S. 604 (1996)................. 8, 10 

Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) 5 

Fed. Election Comm’n v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986)..................................................... 5 

Kusper v. Pontikes, 414 U.S. 51 (1973) ...................... 8 

Lincoln Club of Orange Cnty. v. City of Irvine, 292 

F.3d 934 (9th Cir. 2002).............................................. 5 

McConnell v. Fed. Election Comm’n, 540 U.S. 93 

(2003)........................................................................... 6 
iv 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 

(1995)........................................................................... 5 

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)........ 4 

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 

..................................................................................... 4 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 

377 (2000)............................................................ 6, 8, 9 

Randall v. Sorrell, 548 U.S. 230 (2006) ..................... 8 

Republican Party of Minn. v. White, 536 U.S. 765 

(2002)........................................................................... 4 

Rickert v. Pub. Disclosure Comm’n, 168 P.3d 826 

(Wash. 2007) .............................................................. 5 

Roth v. United States, 354 U.S. 476 (1957)................ 4 

Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993)...... 4 

Shelton v. Tucker, 364 U.S. 479 (1960)...................... 8 

SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 

686 (2010).................................................................. 10 
v 

Other Authorities 

U.S. Const. amend. I......................................... passim 

Federal Elections Campaign Act (FECA) 

2 U.S.C § 441a(3)(A)................................passim 
1 

STATEMENT OF INTEREST OF 

AMICI CURIAE1

The Thomas Jefferson Center for the 

Protection of Free Expression is a nonprofit, 

nonpartisan organization located in Charlottesville, 

Virginia. Founded in 1990, the Center has as its sole 

mission the protection of free speech and press. The 

Center has pursued that mission in various forms, 

including the filing of amicus curiae briefs in this 

and other federal courts, and in state courts around 

the country. 

The Media Institute is an independent, 

nonprofit research organization located in Arlington, 

Virginia. Through conferences, publications and 

filings with courts and regulatory bodies, the 

Institute advocates a strong First Amendment, a 

competitive communications industry and 

journalistic excellence. The Institute has 

participated as amicus curiae in numerous court 

proceedings, including cases before the United States 

Supreme Court and federal courts of appeal. 



1 This amici curiae brief is filed with the written consent of the 

parties. A copy of the consent of the Federal Election 

Commission has been filed with the Clerk of Court for the 

Supreme Court of the United States. The written consents of 

Shaun McCutcheon and the Republican National Committee 

are enclosed. 
2 

SUMMARY OF ARGUMENT

Laws that prevent individuals from advocating 

for and through their preferred candidates for public 

office should be subject to this Court’s strictest 

scrutiny. Political speech is at the core of the First 

Amendment’s sphere of protected speech. The center 

of that core is political speech in the context of 

elections. Elections are the essential political activity 

in a representative democracy. This Court has 

traditionally subjected laws that significantly burden 

political speech in the election context to strict 

scrutiny review. In Buckley v. Valeo, however, a 

lesser degree of scrutiny was applied to campaign 

contribution limits. 424 U.S. 1 (1976). This Court 

should repudiate that aberration, at least with 

respect to laws imposing an aggregate limit on 

campaign contributions. 

Individuals have political interests that are 

not only local or regional but also national in scope. 

An aggregate contribution limit is a significant 

burden on core political speech in that it prohibits 

individuals from expressing support for, and 

associating with, all of their preferred candidates 

through contributions at the per-candidate 

contribution limit. The Federal Elections Campaign 

Act (FECA) prohibits individuals from contributing 

to more than 18 candidates at the per-candidate 

contribution limit in any two-year period. 2 U.S.C § 

441a(3)(A). This aggregate limit on contributions to 

candidates is not narrowly tailored to further the 

government’s anti-corruption interest. With or 

without the aggregate limit, individuals’ every 
3 

contribution will still be within the range that 

Congress has found does not create a serious risk of 

eliciting an illicit political favor from the recipient. 

Furthermore, the risk that a contributor can corrupt 

a particular candidate by contributing to more than 

17 other candidates at the per-candidate limit is 

remote. Because contributions at the per-candidate 

contribution limit do not create a serious risk of quid 

pro quo corruption, FECA’s limit on the number of 

candidates to whom an individual may make such a 

contribution cannot survive strict scrutiny review. 

DISCUSSION

I. The Aggregate Limit on Contributions to 

Candidates Should Be Subject to Strict 

Scrutiny 

 

FECA’s aggregate contribution limit should be 

subject to strict scrutiny review because (a) the 

aggregate limit constitutes a restriction on speech in 

the electoral context—a category traditionally 

afforded heightened protection, (b) the aggregate 

limit significantly restricts political speech by 

limiting an individual’s ability to engage in the 

symbolic act of contributing to preferred candidates, 

and (c) the aggregate limit hinders an individual’s 

First Amendment right to associate with the 

candidates of his or her choosing. 
4 

A. Speech in the Electoral Context Is 

Traditionally Accorded the Highest Protection.

The First Amendment’s protection of speech is 

at its zenith in the context of political activity. 

Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) 

(“The constitutional guarantee [of free speech] has its 

fullest and most urgent application precisely to the 

conduct of campaigns for political office.”). This 

Court has interpreted that protection broadly, 

reflecting a “profound national commitment to the 

principle that debate on public issues should be 

uninhibited, robust and wide-open.” New York Times 

Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

Accordingly, “to assure unfettered interchange 

of ideas for the bringing about of political and social 

changes desired by the people,” Roth v. United 

States, 354 U.S. 476, 484 (1957), this Court has 

traditionally subjected the restriction of such speech 

to strict scrutiny. These constitutionally suspect 

laws include regulations concerning electioneering 

and other activity around polling places,2 regulations 

of speech by political candidates,



3 restrictions on 

2 See Burson v. Freeman, 504 U.S. 191 (1992) (applying strict 

scrutiny to statute prohibiting solicitation of votes within 100 

feet of polling place); see also Schirmer v. Edwards, 2 F.3d 117 

(5th Cir. 1993) (applying strict scrutiny to Louisiana statute 

proscribing campaign activity within 600 feet of polling places); 

Am. Broad. Co., Inc. v. Blackwell, 479 F. Supp. 2d 719 (S.D. 

Ohio 2006) (applying strict scrutiny to Ohio restrictions against 

conducting exit polling within 100 feet of a polling place). 

3 See Republican Party of Minn. v. White, 536 U.S. 765 (2002) 

(applying strict scrutiny to regulation preventing judicial 
5 

be inhibited. Brown, 456 U.S. at 53. 



leafleting activities,4 and regulations concerning 

candidate self-funding and issue funding.5 

The application of strict scrutiny in these 

circumstances reflects the First Amendment norm 

that political speech is essential to a free and robust 

political process, and that laws restricting such 

speech must be narrowly tailored to a compelling 

interest lest “[t]he free exchange of ideas [which] 

provides special vitality to the process traditionally 

at the heart of American constitutional democracy,” 

candidates from announcing their views on disputed legal or 

political issues); Brown v. Hartlage, 456 U.S. 45 (1982) 

(applying strict scrutiny to regulation prohibiting candidates 

from offering material benefits to voters in consideration for 

their votes); see also Rickert v. Pub. Disclosure Comm’n, 168 

P.3d 826 (Wash. 2007) (en banc) (applying strict scrutiny to 

statute prohibiting candidates from sponsoring political 

advertisements containing falsities). 

4 See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 

(1995) (stating that “handing out leaflets in the advocacy of a 

politically controversial viewpoint . . . is the essence of First 

Amendment expression”). 

5 See Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) 

(applying strict scrutiny to regulation treating self-financed 

candidates differently from those financed by other means); 

Fed. Election Comm’n v. Mass.Citizens for Life, Inc., 479 U.S. 

238 (1986) (applying strict scrutiny to regulation prohibiting 

corporations from endorsing candidates with advertisements); 

see also Lincoln Club of Orange Cnty. v. City of Irvine, 292 F.3d 

934 (9th Cir. 2002) (applying strict scrutiny to city ordinance 

limiting the amount of contributions that a committee could 

receive from a single source during an election campaign). 
6 

FECA’s aggregate limit on contributions to 

candidates should receive scrutiny that is no less 

stringent than these other suspect laws burdening 

core speech and associational rights. As Justice 

Kennedy observed in Nixon v. Shrink Missouri 

Government PAC, “[a]midst an atmosphere of 

skepticism” about the role of campaign contributions 

in politics, “it hardly inspires confidence for the 

Court to abandon the rigors of our traditional First 

Amendment structure.” 528 U.S. 377, 406 (2000) 

(Kennedy, J., dissenting). 

B. The Aggregate Limit on Contributions to 

Candidates Imposes a Significant Burden on 

Core Political Speech by Prohibiting 

Individuals from Engaging in The Symbolic 

Act of Contributing to Their Preferred 

Candidates. 

Although this Court applies strict scrutiny to 

its review of expenditure limits, McConnell v. Fed. 

Election Comm’n, 540 U.S. 93, 136 (2003), in Buckley

it reasoned that contribution limits are meaningfully 

distinguishable from expenditure limits because they 

impose only a marginal restriction on the donor’s 

freedom of speech, stating as follows: 

The quantity of communication by the 

contributor does not increase 

perceptibly with the size of his 

contribution, since the expression 

rests solely on the undifferentiated, 

symbolic act of contributing. . . . A 
7 

limitation on the amount of money a 

person may give to a candidate or 

campaign organization thus involves 

little direct restraint on his political 

communication, for it permits the 

symbolic expression of support 

evidenced by a contribution but does 

not in any way infringe the 

contributor’s freedom to discuss 

candidates and issues. 

424 U.S. at 21. This purported distinction between 

contribution and expenditure limits, however, does 

not hold up as applied to aggregate contribution 

limits, as distinct from limitations on per-candidate 

contribution limits. Aggregate contribution limits 

function as a cap on the number of candidates for 

whom an individual may make “the symbolic 

expression of support” that the Buckley Court 

acknowledged as essential political speech and, thus, 

diminish an individual’s “quantity of communication” 

in the election context. Id. The result is the absolute 

suppression of one’s political speech, not merely a 

restraint on the intensity of one’s speech. 

Nor can contribution limits (either aggregate 

or per-candidate limits) be meaningfully 

distinguished from expenditure limits on the basis 

that financial contribution is a form of indirect 

speech. There is no meaningful difference between 

commissioning and contracting for the dissemination 

of an advertisement in support of a candidate, and 

supporting the candidate by providing funds to do 

the same. The Buckley Court’s reliance on a 
8 

distinction between “contributions from expenditures 

based on the presence of an intermediary between a 

contributor and the speech eventually produced . . . is 

misguided, given that ‘[e]ven in the case of direct 

expenditure, there is usually some go-between that 

facilitates the dissemination of the spender’s 

message.’” Randall v. Sorrell, 548 U.S. 230, 266 

(2006) (Alito, J., dissenting) (quoting Colo. 

Republican Fed. Campaign Comm’n v. Fed. Election 

Comm’n, 518 U.S. 604, 638-39 (1996) (opinion of 

Thomas, J.)). 

Furthermore, the contribution limits prevent 

individuals from choosing how best to disseminate 

their message and “an individual’s choice of that 

mode of expression” is itself entitled to protection. 

Nixon, 528 U.S. at 417 n.5 (2000) (Thomas, J., 

dissenting). 

C. The Aggregate Contribution Limit Hinders the 

First Amendment Right to Associate.

FECA’s aggregate contribution limit also 

significantly burdens core associational rights. The 

right to associate is a “basic constitutional freedom,” 

Kusper v. Pontikes, 414 U.S. 51, 57 (1973); that is 

“closely allied to freedom of speech and a right which, 

like free speech, lies at the foundation of a free 

society.” Shelton v. Tucker, 364 U.S. 479, 486 (1960). 

FECA’s burden on that right is self-evident—once an 

individual has exhausted his or her biennial 

aggregate limit, FECA outright prohibits any 

association with additional candidates through 
9 

limit is disproportionate to



financial contributions to their campaigns during 

that two-year period.6 

The mere fact that the aggregate contribution 

limit does not foreclose every avenue of political 

association (e.g., handing out leaflets on the street) 

should not cause this Court to apply lesser scrutiny. 

As Justice Thomas noted in his Nixon dissent, this 

Court has “rejected the notion that a law will pass 

First Amendment muster simply because it leaves 

open other opportunities.” 528 U.S. at 418 n.6 

(Thomas, J., dissenting) (collecting cases). 

II. The Aggregate Contribution Limit is not 

Narrowly Tailored to Combat Electoral 

Corruption 

In enacting FECA, Congress determined that 

contributions at the per-candidate limit do not 

present a serious risk of corrupting the recipient. 

The risk that a contributor will successfully elicit an 

illicit political favor from a particular candidate by 

contributing at the per-candidate limit to other

candidates is, therefore, remote. Thus, the burden 

on core political speech imposed by the aggregate 

 the government’s interest 

6 FECA’s aggregate limit on contributions to candidates also 

infringes the associational rights of the candidates themselves, 

who wish to receive contributions. A cap on the number of 

candidates an individual may support is perhaps most 

threatening to third-party candidates, who, as the Buckley

Court observed, “are more vulnerable to falloffs in 

contributions.” 424 U.S. at 71. 
10 

in avoiding quid pro quo corruption, which is the only 

governmental interest “sufficiently important to 

outweigh the First Amendment interests implicated 

by contributions for political speech.” SpeechNow.org 

v. Fed. Election Comm’n, 599 F.3d 686, 692 (2010) 

(internal quotation marks omitted); see also Citizens 

United v. Fed’l Election Comm’n, 558 U.S. 310 (2010) 

(rejecting nebulous notions of some “appearance of 

corruption,” and looking instead to its historical 

understanding of the “hallmark of corruption . . . 

financial quid pro quo: dollars for political favors”). 

In the absence of a manifest risk of quid pro 

quo corruption, FECA’s limit on the number of 

candidates to whom an individual may contribute at 

the per-candidate limit cannot survive strict scrutiny 

review. “‘Where First Amendment rights are 

involved, a blunderbuss approach which prohibits 

mostly innocent speech cannot be held a means 

narrowly and precisely directed to the governmental 

interest in the small minority of contributions that 

are not innocent.’” Colo. Republican Fed. Campaign 

Comm’n, 518 U.S. at 642 (Thomas, J., concurring in 

judgment and dissenting in part) (quoting Brief for 

Appellants in Buckley, pp. 117-18). 

 
11 

CONCLUSION

 For the foregoing reasons, amici respectfully 

request that the Court hold that the Federal 

Elections Campaign Act’s aggregate limit on 

contributions to candidates is unconstitutional. 

 

 Respectfully submitted, 

 

 /s/ J. Joshua Wheeler

Thomas E. Hogan J. Joshua Wheeler* 

Baker Hostetler LLP Clayton N. Hansen 

Washington Square The Thomas Jefferson 

1050 Connecticut Ave., NW Center for the Protection 

Washington, DC 20036 of Free Expression 

P: 202-861-1577 400 Worrell Drive 

thogan@bakerlaw.com Charlottesville, VA 22911 

 P: 434-295-4784 

 jjw@tjcenter.org 

*Counsel of Record for 

Amici Curiae