No. 02-1676 and consolidated cases 

IN THE 

S u p r eme Court o f the U nited Sta t e s 

FEDERAL ELECTION COMMISSION, et al. 

Appellants 

vs. 

SENATOR MITCH MCCONNELL, et al. 

Appellees. 

On Appeal from the United States 

District Court for the District of Columbia 

Joint Brief on the Merits of Appellees Emily Echols


and Barret Austin O’Brock, et al.,


Urging Affirmance of the Judgment that


BCRA Section 318 is Unconstitutional


(FINAL VERSION)


JAMES BOPP, JR. JAY ALAN SEKULOW 

RICHARD E. COLESON Counsel of Record 

THOMAS J. MARZEN JAMES M. HENDERSON, SR. 

JAMES MADISON CENTER FOR STUART J. ROTH 

FREE SPEECH COLBY M. MAY 

BOPP, COLESON & BOSTROM JOEL H. THORNTON 

1 South 6th Street WALTER M. WEBER 

Terre Haute, IN 47807-3510 AMERICAN CENTER FOR LAW 

(812) 232-2434 & JUSTICE 

201 Maryland Avenue NE 

Attorneys for Appellee Barrett Washington, DC 20002-5703 

Austin O’Brock (202) 546-8890 

Attorneys for Appellees Emily 

Echols, et al. 
APPELLEES’ COUNTER-STATEMENT 

OF QUESTION PRESENTED 

Prior to the effective date of the Bipartisan Campaign 

Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 

116 Stat. 81, minors had the right to contribute to the 

committees of political parties and to candidates for 

federal office, subject to the same limitations that also 

applied to persons who had attained their majority. 

Section 318 of BCRA completely prohibits donations to 

committees and to candidates by minors. In the view of 

these Appellees, all of whom are minors, the question 

presented is: 

Whether the three judge district court erred in its 

judgment that the absolute ban on donations by 

minors was unconstitutional? 

(i) 
PARTIES 

These Appellees incorporate by reference the listing of 

the parties set out in the Jurisdictional Statement of the 

FEC, et al., at II-IV. In addition to the Appellees listed on 

the cover, this brief is joined by Appellees Daniel Solid, 

Hannah and Isaac McDow, Jessica Mitchell, and Zachary 

White. 

(ii) 
TABLE OF CONTENTS 

Page 

Appellees’ Counter-Statement of Questions Presented . i


Parties ...................................... ii


Table of Authorities ........................... vi


Glossary .................................... x


Citations to the Decision Below ................. 1


Constitutional Provisions, Treaties, Statutes and


Regulations ............................... 2


Statement of the Case .......................... 2


1. Course of Proceedings ....................... 2


2. Decision Below ............................ 3


A. The Judgment Below ..................... 3


B. The Opinions of the Judges Below ........... 3


(1) Judge Henderson .................... 3


(2) Judge Kollar-Kotelly ................. 4


(3) Judge Leon ......................... 4


3. Statement of Relevant Facts .................. 5


A. Prior to Enactment of BCRA, Both So-called


“Co ndu it” Contributions and Exce ss


Contributions Violated Existing Provisions of


FECA ................................. 5


B. Prior to the Enactment of BCRA, the FEC Had


Limited Experience with Parental Conduit


Giving, and Resolved Those Instances it Has


Reported ............................... 5


(iii) 
TABLE OF CONTENTS 

Page 

C. The FEC Has Recommended Narrow Statutory 

Adjustments to Congress to Address the Potential 

of Conduit Giving by Parents but Not a Complete 

Prohibition on Political Contributions by Minors 

....................................... 6


D. BCRA Section 318 ....................... 7


E. The Minors in Echols and in McConnell ...... 8


Summary of Argument ........................ 11


Argument .................................. 14


I. Section 318 Violates Minors’ Constitutional Rights


........................................ 15


A. Minors Possess First Amendment Rights of


Freedom of Association and Speech ......... 16


B. There Is No Sufficiently Compelling


Governmental Interest to Justify the Denial of


Minors’ Constitutional Rights of Speech and


Association ............................ 20


C. Section 318 Is Not Narrowly Drawn to Serve


the Asserted Governmental Interest ......... 26


(1) When First Amendment Freedoms Are at


Risk, the Constitution Demands That


Congress Draw its Legislative Solutions


Narrowly ......................... 28


(2)	 The Court below Correctly Concluded That


Section 318 Was Not Narrowly Drawn .. 29


(iv) 
TABLE OF CONTENTS–cont’d 

Page 

(3)	 The Failure of Congress to Draw this 

Provision Narrowly Is Attested to by the 

Wide Variety of Alternatives That Are 

Drawn Narrowly Drawn to the Asserted 

Interests .......................... 31 

(4)	 Congress Could Have Succeeded in 

Drawing its Provision Narrowly by 

Following One of the Varied Approaches 

Taken by the Several States ........... 32 

(A) West Virginia .................... 31 

(B) Alaska ......................... 33 

(C) C onnecticut, Florid a , 

Kentucky, and Massachusetts 

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

(D)	 Arizona, Arkansas, Hawaii, 

Kans as, Mich igan , 

Oklahoma, South Carolina, 

and Texas ....................... 34 

D. The Judgment below Comports with this Court’s 

Decision in FEC v. Beaumont .............. 35 

II.	 The Voidability of Minors’ Gifts Does Not Justify 

Suppressing Minors’ Constitutional Rights ... 41 

III.	 The Ban on Contributions by Minors Is 

Overbroad ............................. 46 

IV. Section 318 Violates the Minors’ Rights to 

Equal Protection ........................ 49 

Conclusion ................................. 50 

(v) 
TABLE OF AUTHORITIES 

Page(s) 

CASES


Bellotti v. Baird, 443 U.S. 622 (1979) ............ 17


Bowers v. Hardwick, 478 U.S. 186 (1986) ........ 42


Buckley v. Valeo, 424 U.S. 1 (1976) ....... 14, passim


Clark v. Community for Creative Nonviolence, 


468 U.S. 288 (1984) ....................... 29


Clark v. Jeter, 486 U.S. 456 (1988) .............. 49


FEC v. Beaumont,


2003 U.S. Lexis 4595 (June 16, 2003) ... 13, passim


FEC v. National Conservative Political Action Comm.,


470 U.S. 480 (1985) .................... 31, 39


Frisby v. Schultz, 487 U.S. 474 (1988) ........... 30


Gitlow v. New York, 268 U.S. 652 (1925) ...... 45-46


Griswold v. Connecticut, 381 U.S. 479 (1965) ..... 14


Lawrence v. Texas, 2003 U.S. Lexis 5013


(June 26, 2003) ........................... 42


Members of the City Council v. Taxpayers for Vincent,


466 U.S. 789 (1984) ....................... 28


NAACP v. Button, 371 U.S. 415 (1963) ........ 28, 31


Nixon v. Shrink Mo. Gov't PAC, 


528 U.S. 377 (2000) ....................... 15


Ohio v. Akron Center for Reproductive Health,


497 U.S. 502 (1990) ....................... 47


Riley v. National Fed’n of the Blind, 


487 U.S. 781 (1988) ....................... 49


Schneider v. State, 308 U.S. 147 (1939) .......... 28


Secretary of State v. J. H. Munson Co., 


467 U.S. 847 (1984) ....................... 48


(vi) 
TABLE OF AUTHORITIES–cont’d 

Page(s)


Thornhill v. Alabama, 310 U.S. 88 (1940) ........ 48


Tinker v. Des Moines Ind. Comm. Sch. Dist.,


393 U.S. 503 (1969) .................... 12, 16


United States v. Grace, 461 U.S. 171 (1983) ....... 13


Ward v. Rock Against Racism, 


491 U.S. 781 (1989) .................... 22, 29


West Virginia v. Barnette, 319 U.S. 624 (1943) .... 12


Westside Comm. Schools v. Mergens,


496 U.S. 226 (1990) ....................... 48


CONSTITUTIONAL PROVISIONS


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


U.S. Const. amend. V ......................... 49


U.S. Const. amend. XV, § 1 .................... 18


U.S. Const. amend XXIV, § 1 .................. 18


U.S. Const. amend. XXVI, § 1 ................. 19


STATUTES AND LEGISLATIVE MATERIALS 

The Bipartisan Campaign Reform Act of 2002


(BCRA), Pub. L. No. 107-155, 116 Stat. 81 i, passim


Title 2 U.S.C. § 441f (2002) .............. 5, passim


Title 2 U.S.C. § 441a (2002) .............. 5, passim


Title 10 U.S.C. § 505 (2002) ................ 24, 30


The Equal Access Act of 1984,


Title 20 U.S.C. § 4071 ...................... 48


CONGRESSIONAL RECORD


148 Cong. Rec. S2145-46 (daily ed. March 20, 2002) 8


148 Cong. Rec. S2145-48 (daily ed. March 20, 2002) 8


(vii) 
STATE STATUTES AND REGULATIONS 

2 Alaska Admin. Code § 50.258 (2002) .......... 33 

Ark. Code Ann. § 7-6-205 (2002) ............... 34 

Ariz. Rev. Stat. § 16-905 (2001) ................ 34 

Conn. Gen. Stat. § 9-333m (2001) ............... 33 

Fla. Stat. § 106.08 (2002) ...................... 33 

Haw. Rev. Stat. § 11-204 (2002) ............. 34-35 

Kan. Stat. Ann. § 25-4153 (2001) ............... 35 

Ky. Rev. Stat. Ann. § 121.150 ............... 33-34 

Mass. Ann. Laws ch. 55, § 7 (2002) ............. 34 

Mich. Comp. Laws § 169.253 (2002) ............ 35 

21 Okla. Stat. § 187.1 (2002) ................... 35 

S.C. Code Ann. § 8-13-1330 (2001) ............. 35 

Tex. Elec. Code § 253.158 (2002) ............... 35 

W. Va. Code § 3-8-12 (2002) .................. 33 

INTERNET WEB PAGES 

Marianne Means, Parties Reward Converts; Voters 

Don't, South Coast Today, http://www.st.com/daily/04-96/04-15-96/5convert.htm ...... 44 

http://www.dcd.uscourts.gov/mcconnell-2002-ruling. 

html ..................................... 1 

Inside Politics: Party Switchers, Past and Present, 

http://www.cnn.com/2001/ALLPOLITICS/05/23/s 

witchers.list ........................... 43, 44 

Biographical Directory of the United States Congress, 

http://bioguide.congress.gov/biosearch/biosearch.asp 

..................................... 43, 44 

Encyclopedia American a: Ronald Reagan 

http://gi.grolier.com/presidents/ea/bios/40preag.html 

........................................ 44 

(viii) 
TABLE OF AUTHORITIES–cont’d 

Page(s) 

LAW REVIEWS AND JOURNALS 

Gary D. Allison, Protecting Party Purity in the 

Selection of Nominees for Public Office: The 

Supremes Strike Down California's Blanket 

Primaries and Endanger the Open Primaries of 

Many States, 36 Tulsa L.J. 59 (2000) .......... 44 

Michael Les Benedict, Salmon P. Chase and 

Constitutional Politics, 22 Law & Soc. Inquiry 459 

(1997) .................................. 44 

R. Kent Newmyer, Supreme Court Justice Joseph 

Story, 71 Cornell L. Rev. 726 (1996) .......... 44 

OTHER MATERIALS 

B. Drummond Ayres, Jr., Campaign Briefing, N.Y. 

Times, June 6, 2000, § A, at 21 ............... 45 

Frank Bruni, Gary Condit Is Still Running, N.Y. Times, 

February 17, 2002, § 6, at 30 .............. 44-45 

Inside, N.Y. Times, February 14, 2000, § A, at 1 .... 43 

Jim Tharpe, Abortion Foes Split On Chambliss, Atlanta 

Journ. and Const., October 22, 2002, at 5B ...... 44 

Wayne King, Anti-Florio Fever is Giving Headache to 

a Democrat, N.Y. Times, October 27, 1990, § 1, at 

25 ...................................... 45 

(ix) 
GLOSSARY


BCRA: Bipartisan Campaign Reform Act


FECA: Federal Election Campaign Act


FEC: Federal Election Commission


FEC JS: Jurisdictional Statement of the FEC, et al.


FEC Resp.: FEC Response to Joint Motion to Affirm


Summarily 

JA: Joint Appendix 

Supp. App.: Supplemental Appendix 

(x) 
In the Supreme Court of the United States 

No. 02-1676 and consolidated cases 

FEDERAL ELECTION COMMISSION, et al., 

Appellants 

vs. 

SENATOR MITCH MCCONNELL, et al., 

Appellees. 

On Appeal from the United States District Court 

for the District of Columbia 

Joint Brief on the Merits of Appellees Emily Echols


and Barret Austin O’Brock, et al.,


Urging Affirmance of the Judgment that


BCRA Section 318 is Unconstitutional


The minor Appellees, by their next friends, urge this 

Court to affirm the judgment of the three judge court of 

the United States District Court for the District of 

Columbia that Section 318 of BCRA is unconstitutional. 

CITATIONS TO THE DECISION BELOW 

The decision below is published at 2003 U.S. District 

Lexis 7912 (D.D.C. May 2, 2003), and is available on 

the website of the United States District Court at 

http://www.dcd.uscourts.gov/mcconnell-2002-ruling.html. 

As directed by this Court, the Appellants in the 

consolidated cases have filed a four-volume Supplemental 

Appendix to Jurisdictional Statement, in which are 

reproduced the four opinions of the three judge panel 

below. 

CONSTITUTIONAL PROVISIONS, TREATIES, 

STATUTES AND REGULATIONS 

The relevant constitutional provisions, statutes and 

(1)

2


regulations are set out in the appendix to the FEC’s 

Jurisdictional Statement. See FEC JS at 1-2 (and appendix 

pages cited). 

STATEMENT OF THE CASE 

1. Course of Proceedings 

Following the enactment by Congress of BCRA, and its 

signature into law by President Bush, more than six dozen 

individuals and organizations filed suits challenging the 

constitutionality of the Act.1 Section 403 of BCRA 

required the District Court to expedite its consideration of 

challenges to the constitutionality of BCRA. In keeping 

with that requirement, the three-judge district court 

consolidated the suits and imposed an expedited schedule 

for discovery and trial.2 

1. The lawsuits, in order of their filing, were: NRA v. FEC, 

No. 02-cv-581 (D.D.C. filed Mar. 27, 2002); McConnell v. FEC, 

No. 02-cv-582 (D.D.C. filed Mar. 27, 2002); Echols v. FEC, No. 

02-cv-633(D.D.C. filed Apr. 4, 2002); Chamber of Commerce v. 

FEC, No. 02-cv-751 (D.D.C. filed Apr. 22, 2002); National 

Association of Broadcasters v. FEC, No. 02-cv-753(D.D.C. filed 

Apr. 22, 2002); American Federation of Labor v. FEC, No. 02-cv754 (D.D.C. filed Apr. 22, 2002); Paul v. FEC, No. 02-cv-781 

(D.D.C. filed Apr. 23, 2002); Republican National Committee v. 

FEC, No. 02-cv-874 (D.D.C. filed May 7, 2002); California 

Democratic Party v. FEC, No. 02-cv-875 (D.D.C. filed May 7, 

2002); Adams v. FEC, No. 02-cv-877 (D.D.C. filed May 7, 2002); 

Thompson v. FEC, No. 02-cv-881 (D.D.C. filed May 7, 2002). 

2. See Order (D.D.C. Apr. 24, 2002)(consolidating cases), JA 

1655-58; Order (D.D.C. May 13, 2002) (consolidating 

subsequently filed cases), JA 1661-64; Order (D.D.C. Apr. 24, 
3


2. Decision Below 

A. The Judgment Below 

All three judges below concluded that Section 318 

violates the Constitution: 

Section 318 prohibits donations by minors to federal 

candidates, or to a committee of a political party. 

All three judges agree that this section is 

unconstitutional. Each judge writes a separate 

concurrence setting forth his/her reasoning as to this 

section. 

Per Curiam Op. at 11; Supp. App. 9sa. 

B. The Opinions of the Judges Below 

(1) Judge Henderson 

Judge Henderson concluded that whether analyzed 

under strict scrutiny or under “Buckley scrutiny,” Section 

318 was unconstitutional. Supp. App. 462sa (concluding 

that, because Section 318 failed scrutiny under the less 

strict standard of Buckley, it was unnecessary to decide 

whether strict scrutiny applied to it). In Judge 

Henderson’s view, the Appellants’ arguments for the 

constitutionality of Section 318 failed for two principal 

reasons: 

First, section 318 does not serve any governmental 

interest, much less a “sufficiently important” or 

2002) (discovery schedule), JA 1659-60; Order (D.D.C. July 26, 

2002) (amending discovery schedule), JA 1691-93; Order (D.D.C. 

Oct. 15, 2002) (briefing schedule), JA 1802-06; Order (D.D.C. 

Nov. 15, 2002) (setting oral argument), JA 1807-08; Order (D.D.C. 

Nov. 26, 2002) (setting schedule for oral argument), JA 1809-11. 
4 

“compelling” one. 

* * * * 

Second, even if section 318 served to prevent actual 

or apparent corruption of federal candidates in a 

material way not served by existing law, the 

provision could not be sustained because—far from 

being “closely drawn” or “narrowly tailored”—it is 

grossly overbroad. 

Supp. App. 462sa, 465sa. In addition, Judge Henderson 

found that the evidence proffered to justify Section 318 as 

a tool to prevent corruption to be “remarkably thin.” 

Supp. App. 463sa. 

(2) Judge Kollar-Kotelly 

Judge Kollar-Kotelly, like Judge Henderson, found it 

unnecessary to decide between strict scrutiny or “Buckley 

scrutiny.” In Judge Kollar-Kotelly’s view, “Defendants 

have failed to present sufficient evidence to establish that 

parents’ use of minors to circumvent campaign finance 

laws serves an important government interest.” Supp. 

App. 1009sa. See also Supp. App. 1010sa (“the evidence 

presented is insufficient to support government action that 

abridges constitutional freedoms”). 

(3) Judge Leon 

Judge Leon, while concurring in the conclusion of 

Judges Henderson and Kollar-Kotelly that Section 318 

was unconstitutional, wrote “only to explain why [he] 

believe[d] th[e] Court should evaluate this provision under 

the strict-scrutiny standard of review.” Supp. App. 

1177sa. 
5


3. Statement of Relevant Facts 

A. Prior to Enactment of BCRA, Both So-Called 

“Condu it” Contributions and Excess 

Contributions Violated Existing Provisions of 

FECA 

FECA directly prohibits any person from making 

political contributions in the name of any other person. 

Title 2 U.S.C. § 441f (2002). That prohibition 

encompasses every contribution made in the name of 

another, including those made by a parent in the name of 

their minor child. FECA also directly prohibits any person 

from exceeding the maximum permitted political 

contribution. 2 U.S.C. § 441a. That limitation prevents 

the parent or guardian of a minor child from exceeding 

limitations on contributions by the ruse of donating in the 

name of their minor child. Thus, prior to the enactment of 

BCRA, federal law already prohibited circumventing 

campaign limits by making gifts in the names of children. 

B. Prior to the Enactment of BCRA, The FEC Had 

Limited Experience with Parental Conduit 

Giving, and Resolved Those Instances It Has 

Reported 

No evidence suggested the need for Section 318. 

In fulfillment of its statutory enforcement 

responsibilities, the FEC has investigated only the barest 

handful of instances of parental donations in the names of 

minor children.3 The FEC has acknowledged that one 

3. Judge Kollar-Kotelly summarized the FEC’s regulatory 

enforcement experience in this area. See Supp. App. 772sa, 773sa-
6


percent or fewer of its investigatory “Matters Under 

Review” “involved covered political contributions by 

minors or by parents made in the name of the minor 

children.”4 

C. The FEC Has Recommended Narrow Statutory 

Adjustments to Congress to Address the Potential 

of Conduit Giving By Parents but not a Complete 

Prohibition on Political Contributions by Minors 

The FEC proposed to Congress that it adopt legislation 

related to contributions by minors to federal candidates 

and committees of political parties. The FEC has 

submitted Annual Reports to Congress and to the President 

as required by law. Those Reports provide information 

about the regulatory and enforcement activities of the 

Commission, and they also communicate proposals for 

legislative action. In its 1992 Annual Report, the FEC 

recommended that Congress establish a minimum, but 

unspecified, age for contributors.5 In support of that 

recommendation, the FEC stated: 

The Commission has found that contributions are 

sometimes given by parents in their children’s 

names. Congress should address this potential abuse 

by establishing a minimum age for contributors, or 

otherwise provide guidelines ensuring that parents 

are not making contributions in the name of another. 

774sa (findings of fact ¶¶ 3.5 and 3.8 (including subparts thereof)). 

4. See JA 1767 (FEC Responses to Requests to Admit, ¶ 64). 

5. See 1992 Annual Report at 64; JA 1868. 
7


Id. 

In each of its Annual Reports for the years 1993-98, the 

FEC recommended that Congress establish a presumption 

that contributors below age 16 are not making 

contributions on their own behalf.6 In its 1999 and 2000 

Annual Reports, the FEC recommended that Congress 

establish a minimum age of 16 for making contributions.7 

Regarding this proposal, the FEC stated: 

The Commission has found that contributions are 

sometimes given by parents in their children’s 

names. Congress should address this potential abuse 

by establishing a minimum age of 16 for 

contributors, or otherwise provide guidelines 

ensuring that parents are not making contributions in 

the name of another. 

Id. 

D. BCRA Section 318 

BCRA incorporates no factual findings about problems 

related to donations by minors to the committees of 

political parties or to candidates. Section 318 was added 

to the Act while the proposal was pending in the House. 

No explanation for the provision was offered during 

debate there.8 The only explanation offered for the ban 

6. See, e.g., 1993 Annual Report at 50, JA 1869. 

7. See 1999 Annual Report at 50, JA 1875; 2000 Annual 

Report at 43, JA 1876. 

8. The FEC acknowledged below the absence of any 

explanation related to this provision in the House debates on 
8


came during the Senate debate on the Act.9 There, Senator 

John McCain stated that the ban was needed to address the 

problem of parental circumvention of donation limitations 

by giving contributions in the names of their minor 

children.10 

Section 318, which amends FECA by adding to it a new 

section 324, prohibits anyone seventeen years of age or 

younger from making any contribution to a candidate, or 

a contribution or donation to a national or state political 

party committee: 

An individual who is 17 years old or younger shall 

not make a contribution to a candidate or a 

contribution to a committee of a political party. 

See Title III, § 318, H.R. 2356, 107th Cong. (2002) 

(enacted), (FEC Jurisdictional Statement at 71a). 

E. The Minors in Echols and in McConnell 

Emily Echols, Daniel Solid, Hannah and Isaac 

McDow, Jessica Mitchell, and Zachary White are citizens 

of the United States. Echols, Solid and White reside in 

Georgia, the McDows reside in Alabama, and Mitchell 

resides in Florida. Each of them is aged seventeen years or 

BCRA. See JA 1755-56 (FEC Responses to Requests to Admit, ¶ 

18). 

9. See 148 Cong. Rec. S2145-46 (daily ed. March 20, 2002) 

(statement of Sen. McCain). 

10. See 148 Cong. Rec. S2145-48 (daily ed. March 20, 2002) 

(statement of Sen. McCain). 
9


younger.11 

These Appellees are seriously interested in government, 

politics, and campaigning. They demonstrate that interest 

by participating in campaigns as volunteers, assembling 

signs, distributing literature, walking precincts, even 

traveling great distances to campaign door-to-door for 

candidates they support. In doing so, they have shown 

their commitment to using their rights to freedom of 

association and expression to effect political changes in 

accord with their beliefs and opinions.12 

These minors possess funds that they have earned – 

either by working outside their homes or by performing 

chores around their homes for pay – or that they received 

as gifts. No portion of these funds consists of monies 

given to them for the purpose of making political 

contributions. The parents of the Echols plaintiffs are 

aware of the federal campaign laws and the restrictions 

11. See JA 212, Declaration of Emily Echols, ¶¶ 1-2,5; JA 819, 

Declaration of Daniel Solid, ¶¶ 1-2,5; JA 408, Declaration of 

Hannah McDow, ¶¶ 1-2,5; JA 412, Declaration of Isaac McDow, 

¶¶ 1-2, 5; JA 582, Declaration of Jessica Mitchell, ¶¶ 1-2; JA 831, 

Declaration of Zachary White, ¶¶ 1-2, 5. 

12. See JA 213, Declaration of Emily Echols, ¶¶ 11-13; JA 

820, Declaration of Daniel Solid, ¶¶ 11-13; JA 409, Declaration of 

Hannah McDow, ¶¶ 11-13; JA 413, Declaration of Isaac McDow, 

¶ 11; JA 583-84, Declaration of Jessica Mitchell, ¶ 9; JA 832-33, 

Declaration of Zachary White, ¶¶ 11,13. 
10


they impose; and they have obeyed those laws.13 

Jessica Mitchell and Zachary White have previously 

donated to candidates for office.14 For them, and for each 

of these young citizens, contributing money to candidates 

and to the committees of political parties are forms of 

expression of support for those candidates and committees. 

Moreover, by making such contributions of money, they 

have already associated with those selected candidates and 

committees of political parties. The minors Appellees plan 

to, and intend to, exercise their rights of political 

association and expression by making candidate and 

committee contributions, during their minority, into the 

future. But for the enactment of Section 318 and its ban 

on such political contributions by them, they would be free 

13. See JA 215, Declaration of Emily Echols, ¶¶ 27-32; JA 

821-22, Declaration of Daniel Solid, ¶¶ 24-27; JA 411, Declaration 

of Hannah McDow, ¶¶ 24-26; JA 414-15, Declaration of Isaac 

McDow, ¶¶ 23-25; JA 585-87, Declaration of Jessica Mitchell, ¶¶ 

15, 21-22; JA 834, Declaration of Zachary White, ¶ 27; JA 217, 

220, Declaration of Tim Echols, ¶¶ 10,11,20; JA 817, Declaration 

of Bonnie Solid, ¶¶ 9-11; JA 409, Declaration of Donna McDow, 

¶¶ 11-13; JA 589, Declaration of Pamela Mitchell, ¶¶ 18-20; JA 

832-33, Declaration of Cynthia White, ¶¶ 11-13. 

14. See JA 584, Declaration of Jessica Mitchell, ¶ 9(k); JA 

833, Declaration of Zachary White, ¶ 13(g). 
11


to do so.15 

Appellee Barret Austin O’Brock is a minor living in 

Louisiana.

16 He declared his general intention to 

contribute to federal candidates in future elections, 

including in the 2002 and 2004 election.17 Specifically, he 

stated his intention to contribute at least $20 of his own 

money (not received from any other person for purposes 

of the contribution) to John Milkovich, a candidate for 

U.S. Representative for the Fourth Congressional District 

of Louisiana, prior to the November 2002 general 

election.18 Barret knows candidate Milkovich personally 

because the candidate was Barret’s Sunday School teacher 

for two years.19 

SUMMARY OF ARGUMENT 

The day is long past when America’s teenagers and 

children may be consigned to constitutional steerage, there 

to “enjoy” all the benefits of third class citizenship. As 

15. See JA 214-16, Declaration of Emily Echols, ¶¶ 18-36; JA 

820-22, Declaration of Daniel Solid, ¶¶ 17-28; JA 409-11, 

Declaration of Hannah McDow, ¶¶ 16-27; JA 413-15, Declaration 

of Isaac McDow, ¶¶ 14-26; JA 584-86, Declaration of Jessica 

Mitchell, ¶¶ 11-22; JA 833-34, Declaration of Zachary White, ¶¶ 

15-27. 

16. See Declaration of Barret Austin O’Brock, ¶¶ 1, 2. 

17. See id., ¶¶ 3, 6. 

18. See id., ¶ 4. 

19. See id., ¶ 5. 
12 

early as West Virginia State Bd. of Ed. v. Barnette, 319 

U.S. 624 (1943), it has been without question that 

American children are “whole persons” in the 

constitutional sense. Concomitantly, they possess the 

same constitutional rights and liberties as adults, even if, 

in certain circumstances, such as the special case of public 

schools, the contours of those rights vary slightly from the 

rights of their adult counterparts. See Tinker v. Des 

Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 511 (1969). 

Nonetheless, in a stunning strike against those rights, 

Congress enacted the complete ban embodied in Section 

318. The House of Representatives adopted that new 

provision without explanation. In the Senate, only Senator 

McCain offered any explanation, one that was abbreviated 

at best. This new provision of federal law, as Judge 

Henderson observed, “falls into the category of ‘who 

knows where it came from.’” See Supp. App. at 461sa. 

All three of the judges below agreed that Section 318 

was unconstitutional. A majority – Judges Henderson and 

Kollar-Kotelly – agreed that it was unnecessary to decide 

whether a more stringent standard of review applied 

because of the flagrant unconstitutionality of the flat ban. 

Judge Leon did not disagree with that view, but instead 

focused on the reasons for applying strict scrutiny to 

Section 318. 

The flat ban on political donations by minors flouts 

several constitutional norms relevant to laws affecting 

associational freedoms and expression. As this Court 

instructed in Buckley v. Valeo, 424 U.S. 1, 16-18 (1976), 

Section 318 must be subjected to something more than the 
13 

scrutiny embodied in United States v. O’Brien, or the time, 

place and manner analysis employed in the Public Forum 

cases, e.g., United States v. Grace, 461 U.S. 171 (1983). 

The court below correctly concluded that it could not 

withstand such scrutiny. As an initial matter, the breadth 

of Section 318 is extreme. Under it, a 17 year old working 

as a church secretary or attending basic training at the 

Marine Corps Recruit Depot at Paris Island are lumped in 

with infants and toddlers and treated like babies. 

Likewise, because it bars all minor citizens from making 

political contributions, Section 318 lumps hard-working 

young people whose industry and thrift enables them to 

make small contributions, perhaps five dollars at a time, 

into the specially burdened category of persons less than 

18 years of age, there to suffer the diminution of their 

constitutional rights along with a very few children whose 

parents have violated existing laws and were caught in the 

FEC’s pre-existing regulatory net. 

The ban is severely flawed. It is not drawn in service of 

a sufficiently important government interest. Even 

assuming arguendo such a justification for Congress to act, 

the ban on political contributions by minors is not drawn 

narrowly in service of the government interests at stake. 

In these respects, the judgment below and the opinions of 

Judges Henderson and Kollar-Kotelly comport entirely 

with this Court’s recent decision in FEC v. Beaumont, 

2003 U.S. Lexis 4595 (June 16, 2003). 

The Government seeks support for the complete ban on 

contributions by minors by resorting to the fact that gifts 

by minors are voidable. That voidability, the Government 
14 

intimates, bears significance in the analysis of Section 318. 

The Government’s approach is “uncommonly silly,” 

Griswold v. Connecticut, 381 U.S. 479, 527 (1965) 

(Stewart, J., dissenting). It cannot be squared with the 

Constitution, which this Court has frequently construed to 

protect the right to hold opinions and the right to change 

one’s opinions. Nor can the Government’s approach be 

squared with American political history, riddled as that 

history is with indicia of the “voidability” of party 

affiliations and candidate endorsements. 

ARGUMENT 

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court 

subjected the Federal Election Campaign Act of 1971 and 

certain Internal Revenue Service regulations to 

constitutional scrutiny. Buckley affirmed the 

constitutionality of a cap on the amount of money that any 

person may contribute to any candidate for federal office, 

the candidate’s authorized political committee, or the 

authorized committees of political parties. 424 U.S. at 29. 

In doing so, this Court acknowledged that contributing 

money to a candidate or the committee of a political party 

is an exercise of fundamental rights protected by the First 

Amendment: 

The Act's contribution and expenditure limitations 

operate in an area of the most fundamental First 

Amendment activities. Discussion of public issues 

and debate on the qualifications of candidates are 

integral to the operation of the system of government 

established by our Constitution. 

424 U.S. at 14 (emphasis added). 
15 

To be sure, expressive and associational aspects of 

contributions have been accorded different levels of 

examination by this Court than used in analyzing 

expenditure limitations, see Buckley, 424 U.S. at 20-21, 

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 387 (2000), 

FEC v. Beaumont, 2003 U.S. Lexis 4595, *29-*30 (June 

16, 2003). Nevertheless, the constitutional dimensions of 

political contributions have compelled this Court to 

scrutinize closely restrictions affecting the right to make 

those contributions. See, e.g., Buckley, 424 U.S. at 25. 

Here, Congress has entirely abrogated the right of 

citizens of the United States, solely by reason of their age, 

to contribute money to federal candidates and the 

committees of political parties. See BCRA § 318. In 

doing so, Congress has denied to all minor citizens their 

right to political expression and to political association 

through the act of making contributions, even in token, 

nominal amounts. Unlike Buckley, in which this Court 

upheld a donation cap, the present case addresses an 

“absolute ban on campaign contributions,” FEC Resp. at 

9 n.4 (emphasis added). As Buckley intimates, the 

difference between a cap on donations and a ban of them 

is not a mere distinction without a difference. 424 U.S. at 

21-22, 28. That difference here lends substantial support 

to the judgment below. 

I.	 SECTION 318 VIOLATES MINORS’ 

CONSTITUTIONAL RIGHTS 

As a matter of first principles, a complete ban on 

political contributions strikes directly at the heart of the 

First Amendment. As this Court explained, in addressing 
16 

statutory ceilings on the amount of personal contributions: 

“The Act’s contribution and expenditure limitations 

operate in an area of the most fundamental First 

Amendment activities.” Buckley, 424 U.S. at 14 

(emphasis added). Nothing in Buckley or its progeny 

suggests that the injury of such a flat prohibition on even 

token contributions is felt any less keenly by, or inflicts 

less grievously a wound upon the rights of, citizens of the 

United States who are in their minority. 

A. Minors Possess First Amendment Rights of 

Freedom of Association and Speech. 

If, as this Court has said, students do not “shed their 

Constitutional rights to freedom of speech or expression at 

the schoolhouse gate,” Tinker v. Des Moines Ind. Comm. 

Sch. Dist., 393 U.S. 503, 511 (1969), then there can be no 

question that they possess those rights before they pass 

through those gates. Here, as with analogous contributions 

by their adult counterparts, the political contributions of 

minors are, at a minimum, an exercise of the constitutional 

right to political association. Buckley, 424 U.S. at 15 (“The 

First Amendment protects political association as well as 

political expression;” “[T]he First and Fourteenth 

Amendments guarantee freedom to associate with others 

for the common advancement of political beliefs and 

ideas”) (citations and internal quotation marks omitted). 

For these minors, contributions to candidates and 

committees of political parties serve to express support for 
17


and association with selected candidates and committees.20 

The Government makes the novel argument, see FEC 

Jurisdictional Statement at 28, FEC v. McConnell 

(docketed May 15, 2003), that “any First Amendment 

interests that minors may have in participating in the 

financing of federal elections is substantially limited by 

the fact that minors have no constitutional right to vote in 

such elections.” Unsurprisingly, the Government does not 

rely on any decision of this Court (or, for that matter, of 

any other court) for this proposition. It is insupportable 

and without merit. 

While it is true that minors do not possess the right to 

vote, it is certainly true that they possess the right to 

freedom of speech and of association. And while it is true 

that minors do not possess the right to vote, it is just as 

true that they pay taxes on the income they earn. But 

Section 318 tramples these fundamental rights of every 

minor. Worse, the Government offers no limiting 

principle for the “standard” it applies to prevent the 

suppression of rights of expression in a variety of 

circumstances. 

Absent such a limiting principle, unacceptable and 

unconscionable results are threatened in any case where a 

20. None of the special circumstances that this Court has found 

sufficient to justify governmental intrusion into the exercise of 

fundamental rights by minors is present here. See Bellotti v. Baird, 

443 U.S. 622, 634 (1979) (“the peculiar vulnerability of children; 

their inability to make critical decisions in an informed, mature 

manner; and the importance of the parental role in child rearing”). 
18 

government program or action affects selected groups or 

individuals, but leaves unaffected others who may, 

nonetheless, hold views or opinions that they would 

express about the Government's action. Women, for 

example, are not required to register for selective service. 

In this sense only, women are not affected by the 

registration requirement. By the Government’s reasoning, 

then, Congress could suppress the speech and associational 

rights of a group of mothers of draft-eligible young men. 

Other examples clamor for attention. Men, for example, 

could be silenced in either their support for or opposition 

to abortion rights, because, after all, men cannot become 

pregnant. Anyone who is not the descendants of African 

Americans once held in involuntary servitude could be 

silenced on the question of whether a government program 

of reparations should be undertaken. 

This unprincipled approach is dangerous for another 

reason. It confuses the fact of certain express 

constitutional dimensions of the right to vote with the 

larger aspirations of republican democracy. Then the 

Government uses that confusion as cover to justify the 

denial of other express, and fundamental, rights. 

There are three express provisions in the Constitution 

respecting the right to vote. The Constitution guarantees 

the right of citizens to vote free from discrimination based 

on “race, color, or previous condition of servitude,” U.S. 

Const. amend. XV, § 1, the right of citizens to vote in 

elections regardless of “failure to pay any poll tax or other 

tax,” U.S. Const. amend XXIV, § 1, and the right of 

citizens aged 18 years or older to vote free from 
19 

discrimination “on account of age,” U.S. Const. amend. 

XXVI, § 1. Oddly, perhaps, there is no express provision 

of the Constitution granting a generalized right to vote to 

citizens. But, because of the foregoing provisions, citizens 

cannot be turned away from the ballot box because of their 

race or color, poll tax evaders may vote if they please, and 

18 year olds are not required to wait until they are 21 to 

vote in federal elections. These assurances of access to the 

vote as against certain previously enforced barriers are 

welcome indeed. In the Government’s hands, however, 

they become the tools by which the right to freedom of 

speech and the right of association are deconstructed. 

The Government's rationale fails to account for the 

terms of the First Amendment, which do not admit of an 

entire exception from protection for minors. Nor does the 

Government seek to square its approach with the decisions 

of this Court that have recognized that minors are persons 

in the constitutional sense and possess rights under the 

First Amendment. West Virginia v. Barnette, 319 U.S. 

624 (1943); Tinker. The Government ignores the certainty 

that even if minors are not protected from discrimination 

on the basis of age in voting, every federal election in this 

Nation still holds significance for them. The examples 

cited above, and a host of others readily drawn from the 

cases decided by this Court or the United States Statutes, 

adequately dispose of the simplistic “they can’t vote so 

they don’t count” approach taken by the Government. 
20


B. There Is No Sufficiently Compelling 

Governmental Interest to Justify the Denial 

of Minors’ Constitutional Rights of Speech 

and Association. 

To discern whether Congress has gone too far in 

banning political contributions by minors, it is essential to 

ask what Congress sought to accomplish and to compare 

the purpose of Section 318 with its effect. Section 318 

prohibits all contributions by all minors to every candidate 

for every federal office and to every committee of 

every political party. Section 318 does not simply prohibit 

parents of infants from surreptitiously evading their own 

donations limitations by the fiction of making 

contributions in the name of their infant sons and 

daughters. Section 318 bars 16 and 17 year old minors 

from making political contributions: 

< even though they may no longer be subject to 

compulsory school attendance requirements 

< even though they may no longer be required to obtain 

a worker’s permit to obtain employment 

< even though they are emancipated minors under State 

law 

< even though they are enlisted members of the United 

States military, and 

< even though their wages are subject to federal income 

taxation. 

These are the effects of Section 318. 

It is undisputed that Congress sought to address parental 

circumvention of donation limitations and channeling of 

gifts. In the court below, the Appellants offered various 
21


justifications in defense of Section 318, including avoiding 

corruption and the appearance of it, assuring the 

legitimacy of the electoral system, preventing 

circumvention of campaign contribution limits, facilitating 

deterrence and detection of violations of federal campaign 

limitations, and restoring public faith in the system. 

The concern about circumvention of donation 

limitations by wealthy parents using the names of their 

minor children – to which Senator McCain adverted on the 

Senate floor21 – is unsupported by any substantial 

evidence.22 Both Judge Henderson and Judge KollarKotelly took note of the meagerness of the evidence 

supporting the need for Section 318. Judge Henderson 

found that “the government’s evidence of corruption-byconduit . . . remarkably thin . . . .” Supp. App. 463sa. 

Judge Kollar-Kotelly observed that the Government 

“failed to present sufficient evidence to establish that 

parents’ use of minors to circumvent campaign finance 

laws serves an important governmental interest . . . .” 

Supp. App. 1009sa. In light of that failure, Judge KollarKotelly concluded, “the minimal evidence presented does 

not establish that circumvention of campaign finance laws 

21. See nn. 8-9 , supra and accompanying text. 

22. In his floor statement explaining Section 318, Senator 

McCain erroneously asserted that the FEC has reported a 

substantial problem in this area. See JA 1756-57, (FEC Responses 

to Requests to Admit, ¶¶ 19-20) (noting Senator McCain’s error; 

admitting that the FEC has never asserted that “substantial 

evidence” of this problem exists). 
22 

by parents of minors supports the required governmental 

interest.” Supp. App. 1011sa. 

Even assuming that a remedy was needed for the 

unsubstantiated problems of parental circumvention and 

excess giving, Section 318 is unjustifiable. The ban on 

political contributions burdens substantially more political 

association and speech than necessary precisely because 

its proscriptions apply to individuals who have never 

engaged in prior unlawful behavior. 

Minors’ donations to committees and candidates 

embody classic exercises of the freedom of political 

association and the freedom of speech. No valid 

government interest supports this ban. Such a complete 

ban was not at issue in Buckley. Instead, because FECA 

permitted a contribution in some amount, this Court 

concluded that the ceiling on such contributions survived 

scrutiny. Here, Congress utterly prohibits even a token 

donation. That complete prohibition, to the contrary of the 

FECA limitations at stake in Buckley, encompasses so 

much speech and association unrelated to any regulable 

evil that it is “substantially broader than necessary to 

achieve the interests justifying it.” Ward v. Rock Against 

Racism, 491 U.S. 781, 799 n.7 (1989). 

Nor can concerns about abuses by a few parents, who 

might circumvent restrictions on their own donations by 

using their minor children as surrogates, justify a flat ban 

on contributions by all minors. Such circumvention is 

already illegal under FECA provisions predating BCRA 

and not challenged in this litigation. See Title 2 U.S.C. §§ 

441a and 441f (2002). Moreover, the gift of money by a 
23


minor need not come from parental sources or at parental 

direction. For example, Jessica Mitchell, one of the minor 

Appellees in this case, donated money to a candidate for 

the United States House of Representatives that she had 

earned from a small pet care business that she and a friend 

started in their neighborhood.23 Each of the other minors, 

likewise, has monies that were not received as part of a 

scheme or plan of their parents to circumvent FECA’s 

limitations on contribution amounts. Yet, donations by the 

minor Appellees are barred by Section 318. 

In assessing the purported problem of parental 

circumvention of FECA restrictions, Congress operated 

largely in the dark. The record-keeping and reporting 

requirements of FECA do not require that the age of 

donors to candidates or committees of political parties be 

revealed.24 Consequently, other than anecdotal 

information from newspaper articles of the bare handful of 

FEC Matters Under Review touching on this area,25 

Congress neither possessed nor sought out facts and 

23. See JA 583-34, 586-87, Declaration of Jessica Mitchell, ¶¶ 

9, 22. 

24. See McConnell v. FEC, No. 02-cv-582, Defendants’ 

Opening Brief at 202 (D.D.C. filed Nov. 6, 2002) (“FECA does not 

require political committees to seek or report the age of 

contributors, the reports filed with the Commission do not reveal 

the number of contributions by children”). 

25. See Supp. App. 772sa-773sa, Findings of Fact ¶ 3.6 

(Kollar-Kotelly, concurring) (citing newspaper articles). 
24


statistics to shed light in this area. 

As those anecdotal reports explain, donation reporting 

information frequently used the term “student” 

interchangeably with the term “minor” in response to the 

requirement that an employer be identified for donors.26 

The category “student” could not shed any light on the 

putative problem of parental circumvention of donations 

limitations for at least three reasons. First, as the FEC 

acknowledged below, an adult who is a student may 

identify themselves as a “student.”27 Second, as the FEC 

also acknowledged, not all persons identified as “students” 

on political donation reporting forms are minor children.28 

Third, not all minors are students, and thus, when making 

contributions may not list their occupations as students.29 

Consequently,this uninformative category, “student,” used 

in describing conduit contribution activities in anecdotal 

newspaper reports relied on by Senator McCain suffered 

from the twin defects of being both under- and over26. See Supp. App. 772sa-773sa, Findings of Fact ¶ 3.6 

(Kollar-Kotelly, concurring) (citing newspaper articles). 

27. See JA 1760-61, Responses of the FEC to Requests for 

Admission, ¶ 30 (“The Commission admits that certain adults 

whose occupation is that of student might choose to identify their 

occupation on a donation report as ‘student’”). 

28. See JA 1761, Responses of the FEC to Requests for 

Admission, ¶ 31. 

29. See Title 10 U.S.C. § 505 (2002) (authorizing the United 

States military to accept the enlistment of minors). 
25


inclusive with respect to minors who make political 

contributions. The Government conceded this defect of 

the “student” category below.30 

That Congress operated in the dark in assessing the 

problem and in crafting the solution cannot be surprising. 

The lack of evidence of a problem in this area was 

confirmed by the responses of the FEC and the United 

States to discovery in the trial court. Despite having 

“made a reasonable inquiry,” the FEC and the United 

States were each unable to find any information in their 

possession sufficient to allow them to admit or deny that 

any “present member of Congress and other elected 

federal officer ha[d] engaged in any corrupt act as a result 

of contributions by minors . . . .”31 Nor could they find 

any information in their possession sufficient to allow 

them to admit or to deny that any “present member of 

Congress or any other elected federal officer has an 

appearance of corruption as a result of contributions by 

minors to candidates or contributions or donations by 

minors . . . .”32 And, although preventing corruption and 

30. See McConnell v. FEC, No. 02-cv-582, Defendants’ 

Opening Brief at 202 n. 140 (D.D.C. filed Nov. 6, 2002). 

31. See JA 1762-63 (Response of FEC to Requests to Admit, 

¶ 41; JA 1786-87 (Response of the United States to Requests to 

Admit, ¶ 41). 

32. See JA 1763 (Response of FEC to Requests to Admit, ¶ 42; 

JA 1787 (Response of the United States to Requests to Admit, ¶ 

42). 
26


the appearance of corruption have been identified as a goal 

of the BCRA, and of Section 318, in responding to 

discovery below, the FEC asserted that the terms, “any 

corrupt act” and “an appearance of corruption” are 

vague.33 

Oddly absent from the justifications proffered by the 

Appellants below is any assertion that money from minors 

is, in its essence, corrupting or evil. In fact, the proffered 

justifications exclusively focus on the alleged abuses of 

parents, which abuses already are directly prohibited by 

FECA. Moreover, the Government’s interest in preventing 

corruption or the appearance of corruption is no greater 

(and arguably much less) with respect to minors than with 

respect to adults. Obviously, it is not the view of Congress 

that any donation in any amount is per se corrupting. 

Were that the case, all donations would be proscribed. 

Plainly, the interest in preventing parents from 

circumventing contribution limits by channeling additional 

contributions through their children is not sufficiently 

compelling to justify Section 318. 

C. Section 318 Is Not Narrowly Drawn to Serve 

the Asserted Governmental Interest. 

Two aspects of Section 318 are of particular import to 

an appropriate constitutional analysis of the fit between the 

asserted government purposes for the ban and the means 

chosen to serve them. 

First, the ban applies to individual minors even though 

33. See JA 1762-63 (Response of FEC to Requests to Admit, 

¶¶ 41-42. 
27


their exercise of associational expression and free speech 

has not threatened the Government’s interests. These 

minors are barred from expressing their association with 

candidates and committees by even symbolic, token 

donations despite the utter lack of evidence of subversion 

or corruption, or of their being used by their parents or 

guardian for that purpose. The ban applies to all donations 

by all minors even though there is no reason to conclude 

that such donations, taken individually or in the aggregate, 

either by their nature or practice, injures to relevant 

government interests. 

Second, unlike the direct bans on giving contributions 

in the name of another, 2 U.S.C. § 441f (2002),34 and on 

exceeding limitations on contribution amounts, 2 U.S.C. 

§ 441a(a)(1)(A),35 the ban on contributions by minors is a 

prophylactic suppression of constitutionally protected 

rights of minors. As this Court has admonished, however, 

34.	 Title 2 U.S.C. § 441f provides: 

No person shall make a contribution in the name of another 

person or knowingly permit his name to be used to effect 

such a contribution, and no person shall knowingly accept a 

contribution made by one person in the name of another 

person. 

35.	 Title 2 U.S.C. § 441a provides, in pertinent part: 

Except as provided in subsection (i) and section 315A, no 

person shall make contributions . . . to any candidate and his 

authorized political committees with respect to any election 

for Federal office which, in the aggregate, exceed 

$ 2,000 . . . . 
28 

“broad prophylactic rules in the area of free expression are 

suspect.” NAACP v. Button, 371 U.S. 415, 458 (1963). 

In Buckley, of course, this Court upheld personal 

contribution ceilings, not a complete ban. A ban on such 

gifts could not, however, pass muster. In fact, one of the 

justifications offered in Buckley for a contribution ceiling 

was that a ceiling left donors free to make some donation: 

A 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. 

424 U.S. at 21. A ban that entirely prevents a minor from 

giving “to a candidate or campaign,” does not “permit[] 

the symbolic expression of support evidenced by a 

contribution.” 

(1) When First Amendment Freedoms are at Risk, 

The Constitution Demands that Congress Draw 

its Legislative Solutions Narrowly 

What is called for in this analysis is an examination of 

the fit between purpose and means. For example, in 

Members of the City Council v. Taxpayers for Vincent, 466 

U.S. 789, 810 (1984), the Court upheld an ordinance that 

prohibited the posting of signs on public property, but only 

after concluding that the ordinance “responds precisely to 

the substantive problem [of visual blight] that concerns the 

City.” That cannot be said of the contribution ban; it 

closely resembles the anti-littering law struck down in 

Schneider v. State, 308 U.S. 147 (1939). There, as here, 

the state “could have addressed the substantive evil 
29 

without prohibiting expressive activity,” or adopting a 

“prophylactic rule.” Taxpayers for Vincent, 466 U.S. at 

810. Similarly, Ward v. Rock Against Racism, 491 U.S. 

781 (1989), and Clark v. Community for Creative 

Nonviolence, 468 U.S. 288 (1984), also assume a fit 

between means and ends that is lacking here. Thus, in 

Ward, an ordinance requiring that city employees operate 

sound amplification equipment was upheld because it 

directly advanced the city’s interest in controlling noise. 

491 U.S. at 800. Likewise, in Clark, a regulation barring 

protesters from sleeping in a park was upheld because it 

“narrowly focused on the Government’s substantial 

interest in maintaining the parks in the heart of our Capitol 

in an attractive and intact condition.” 468 U.S. at 296. 

(2) The Court Below Correctly Concluded that 

Section 318 was not Narrowly Drawn 

These cases all show that Congress must craft its 

statutes narrowly when touching upon constitutional 

rights, and must limit itself to interests unrelated to the 

suppression of expression. Buckley, 424 U.S. at 17-18. 

Below, the Appellants identified the interests supposedly 

served by the statute. Unfortunately, the ban is not closely 

drawn to promote those interests. Instead, it focuses 

directly on expressive activities. It thus burdens 

substantially more speech than necessary to accomplish 

the state’s goal and cannot be sustained. 

The interests identified by the Appellants go to abuses 

by persons other than minors. But the ban targets 

constitutional exercises by minors. Consequently the ban 

does not target the “evil” – namely, circumvention or 
30


corruption – that motivated Congress to enact it. Cf. 

Frisby v. Schultz, 487 U.S. 474, 485 (1988) (“complete 

ban can be narrowly tailored . . . only if each activity 

within the proscription’s scope is an appropriately targeted 

evil”). Of course, Congress can address circumvention 

and corruption problems directly; indeed, it already has 

done so with its enactment of 2 U.S.C. §§ 441a and 441f 

(2002). 

Neither the minor Appellees nor their parents have 

challenged those existing provisions of FECA. Those 

restrictions directly serve the interests that are, at best, 

only obliquely served by Section 318's ban on political 

contributions by minors. Instead, the minors’ ban goes 

further and in a different direction entirely. Section 318 

prohibits minors’ political contributions, even when such 

contributions are not made in circumvention of FECA’s 

contribution limits. It prohibits contributions of 

emancipated minors. It prohibits contributions by 

orphaned minors. And it prohibits contributions of those 

minors who, with consent of their parents, have enlisted in 

the United States Armed Forces.36 

The Government asserts that Congress merely drew a 

line in choosing the ages to be affected by the ban 

embodied in Section 318. See FEC Resp. at 8 n.3. To 

buttress its claim, the Government invokes Buckley’s 

teaching that the Court will respect lines drawn by 

Congress in this area. Id. (quoting Buckley, 424 U.S. at 83 

36. See Title 10 U.S.C. § 505 (2002) (authorizing enlistment 

of minors). 
31


n.111). The Buckley language appropriated by the 

Government expressed this Court’s view of the deference 

due to Congress’ judgment about where to draw a line that 

still left contributors free to make donations in some 

amount, even in not as large as they might have preferred. 

That is not the case here. Section 318 is not a “cap.” It is 

a ban. See FEC JS at 9 n.4 (describing ban as absolute). 

The Government invokes no decision of this Court to 

support its presumption that this Court will treat as “mere 

line drawing” a decision by Congress to abrogate 

wholesale constitutional rights of citizens. 

These minors “are not quibbling over fine-tuning of 

prophylactic limitations, but are concerned about 

wholesale restriction of clearly protected conduct.” FEC 

v. National Conservative PAC, 470 U.S. 480, 501 (1985). 

The First Amendment freedoms put in jeopardy by Section 

318 are supremely precious. This Court has explained, 

“because First Amendment freedoms need ‘breathing 

space’ to survive, government may regulate in this area 

only with narrow specificity.” NAACP v. Button, 371 U.S. 

415, 433 (1963). While this Court has instructed that 

“[p]recision of regulation must be the touchstone” when 

regulating activities protected by the First Amendment, 

Section 318 lacks that precision and instead broadly bans 

the exercise of pristine constitutional freedoms. 

(3) The Failure of Congress to Draw this Provision 

Narrowly is Attested to by the Wide Variety of 

Alternatives That are Drawn Narrowly to the 

Asserted Interests 

Ready and less burdensome alternatives exist to ensure 
32


that current election laws are not manipulated by a few 

parents who use their guardianship to channel funds 

through their minor children. In fact, the FEC never 

recommended such a ban to Congress, preferring instead 

to suggest less drastic means.37 Going beyond the all-ornothing approach of the ban, Congress could have 

established a family contribution cap or employed a 

rebuttable presumption regarding the voluntariness of 

minors’ contributions. In fact, Congress could have 

required the FEC and the Attorney General to enforce the 

current restrictions. 

(4) Congress Could Have Succeeded in Drawing 

its Provision Narrowly by Following One of 

the Varied Approaches Taken by the Several 

States. 

In addition to the less burdensome approaches we 

suggest, the “real world” experience of the States suggests 

that ready, less burdensome, and more precisely drawn 

alternatives exist to serve any interest at stake. Several of 

the States have undertaken such less burdensome regimens 

of regulation. Under those regimens minors continue to 

make donations and the putative harms of circumvention 

and corruption are avoided by less draconian means. At 

least fourteen States have enacted less cumbersome and 

prohibitive regimes for the regulation of political 

donations by minors to candidates for state election. The 

variety of approaches reflects the Founders’ genius for 

37. See supra nn. 5-7 and accompanying text (discussing 

Annual Reports and FEC recommendations for legislation). 
33


separate sovereignties and demonstrates the clumsy 

carelessness evinced by Section 318. 

(a) West Virginia 

One State, West Virginia, allows political contributions 

by minors subject to the same cap as applies to the 

donations of adults. See W. Va. Code § 3-8-12 (2002). 

As under federal law prior to the enactment of Section 

318, West Virginia only requires that the minor acts 

knowingly and voluntarily, that the funds donated be 

under the minor’s exclusive ownership and control, and 

that the funds are not derived from a gift made for the 

purpose of contribution. Id. 

(b) Alaska 

Another State, Alaska, has enacted a statute that directly 

and precisely addressed the problem of conduit giving by 

parents through their minor children. See 2 Alaska 

Admin. Code § 50.258 (2002). Under that provision, a 

minor is barred from making a contribution of money or 

other valuables if the funds or goods were given to the 

minor by the parent for the purpose of that contribution. 

Id. 

(c) Connecticut, Florida, Kentucky, 

and Massachusetts 

Four States – Connecticut, Florida, Kentucky, and 

Massachusetts – impose a separate cap on the amount of 

money that minors may contribute. See Conn. Gen. Stat. 

§ 9-333m (2001) (minors under 16 limited to $ 30 per year 

in contributions); Fla. Stat. § 106.08 (2002) 

(unemancipated minors under 18 limited to contributions 

of $ 100 per candidate or political committee); Ky. Rev. 
34 

Stat. Ann. § 121.150 (minors’ contributions may not 

exceed $ 100); Mass. Ann. Laws ch. 55, § 7 (2002) 

(minors under age 18 limited to $ 25 per calendar year). 

Under each of these provisions, a minor remains free to 

engage in the symbolic act of giving that this Court 

recognized in Buckley to be an exercise of the fundamental 

right of association. The choice of smaller amounts, while 

respecting the constitutional exercise at stake, reflects a 

better choice, and one consistent with the Constitution. 

(d) Arizona, Arkansas, Hawaii, 

Kansas, Michigan, Oklahoma, 

South Carolina, and Texas 

Eight States – Arizona, Arkansas, Hawaii, Kansas, 

Michigan, Oklahoma, South Carolina, and Texas – 

demonstrate their respect for the constitutional rights at 

stake in the act of making political donations and their 

appreciation for the possibility, however remote, that some 

parents may make conduit contributions through their 

children. By various approaches, these States allow 

minors to make political donations. The amounts of those 

donations are included in calculating the total 

contributions, either of a particular parent or of a family 

unit. See Ariz. Rev. Stat. § 16-905 (2001) (contributions 

of an unemancipated minor treated as contributions from 

parents); Ark. Code Ann. § 7-6-205 (2002) (attributing 

amount of contribution by dependent child to the parent 

when the parent has provided funds for the purpose of 

making such a contribution); Haw. Rev. Stat. § 11-204 

(2002) (minors may contribute in their own name, but the 

amount of the contribution counts in calculating the total 
35


contributions of the minor’s parent or guardian); Kan. Stat. 

Ann. § 25-4153 (2001) (unemancipated children under 18 

years of age may make contributions but the contributions 

are treated as made by the parent or parents of such 

children); Mich. Comp. Laws § 169.253 (2002) 

(dependent minors may make contributions and have them 

reported in their name but the amount of such 

contributions is attributed to the parent or guardian for 

purposes of compliance with contribution limitations); 21 

Okla. Stat. § 187.1 (2002) (contribution limits treat 

donations by husband, wife and all unemancipated 

children under the age of 18 in the aggregate as a single 

family unit); S.C. Code Ann. § 8-13-1330 (2001) 

(contributions by unemancipated minors under 18 years of 

age are treated as contributions by their parents); Tex. 

Elec. Code Ann. § 253.158 (2002) (children under age of 

18 permitted to contribute but the donation is treated as the 

contribution of the parent or guardian). 

D. The Judgment Below Comports with This 

Court’s Decision in FEC v. Beaumont. 

The judgment that Section 318 is unconstitutional 

comports entirely with this Court’s recent decision in FEC 

v. Beaumont, 2003 U.S. Lexis 4595 (U.S. June 16, 2003).38 

38. Unlike the ban on political contributions by corporations, 

the application of which to nonprofit advocacy corporations was at 

stake in Beaumont, Section 318 is, in fact, a complete ban on 

money donations by individuals who are in their minority. For this 

reason, unlike the challenge brought by a nonprofit advocacy 

corporation in Beaumont, this Court should apply strict scrutiny in 
36


In Beaumont, this Court concluded that the ban on 

direct corporate political contributions applied to nonprofit 

advocacy corporations, and survived constitutional 

scrutiny. 2003 U.S. Lexis 4595, *7 (“We hold that 

applying the prohibition [on corporate contributions 

directly to political candidates] to nonprofit advocacy 

corporations is consistent with the First Amendment”). To 

the point, Beaumont reaffirmed the so-called Buckley 

intermediate level of scrutiny, concluding that the 

corporate direct contribution ban passed muster because it 

was closely drawn to match a sufficiently important 

interest. Beaumont, 2003 U.S. Lexis 4595, *29-*33. This 

Court rejected an argument that the corporate contribution 

ban was not closely drawn, concluding that the argument 

incorrectly characterized federal law as completely 

prohibiting corporate political contributions. Id. 

Importantly, in Beaumont, this Court noted that within the 

larger category of political contributions, corporate 

contributions were further from the heart of the First 

Amendment than those of individuals: 

Within the realm of contributions generally, 

corporate contributions are furthest from the core of 

its analysis of the ban on contributions by minors. As 

demonstrated within, see Argument IV, infra, Section 318 cannot 

survive strict scrutiny. Judge Leon below concluded both that 

strict scrutiny applied for this reason and that Section 318 failed 

such scrutiny. See Supp. App. 1177sa (Leon, J., concurring) 

(discussing Buckley and the application of strict scrutiny to flat 

bans on contributions). 
37


political expression, since corporations' First 

Amendment speech and association interests are 

derived largely from those of their members, . . . and 

of the public in receiving information . . . . A ban on 

direct corporate contributions leaves individual 

members of corporations free to make their own 

contributions, and deprives the public of little or no 

material information. 

Beaumont, 2003 U.S. Lexis 4595, *30 n.8 (citations 

omitted). Of course, Section 318 does not leave individual 

minors “free to make their own contributions.” 

In reaching their conclusion that Section 318 of BCRA 

was unconstitutional, Judges Henderson and KollarKotelly concluded that it was unnecessary to resolve the 

question whether Section 318 was subject to strict scrutiny 

because the statute failed scrutiny under Buckley. Instead, 

Judges Henderson and Kollar-Kotelly concluded that there 

was not a sufficiently important interest at stake. And they 

concluded that evidence gathered by the Government to 

buttress the enactment of Section 318 was either 

“minimal” or “remarkably thin.” Thus, they found that the 

flat ban on contributions was not narrowly drawn to the 

asserted interest in averting parental subversion of 

contribution limits. As demonstrated by their opinions, 

Section 318 could not survive even relatively “complaisant 

review under the First Amendment,” Beaumont, 2003 U.S. 

Lexis 4595, *29. 

Congress did not enact Section 318 to respond to any 

allegedly corrupting influence resulting from political 

contributions by minors. In the Government’s view, 
38 

Section 318 was enacted to address the potential evasion 

of contribution limits by parents through the device of 

making contributions in the name of minor children. See 

FEC JS at 28 (“Section 318 is a valid means of preventing 

adults from circumventing FECA’s contribution limits by 

making surrogate contributionsthrough minors under their 

control”). The ban on corporate campaign contributions, 

however, reflected the well-founded concerns of Congress 

regarding the corrupting influences of such contributions. 

See 2003 U.S. Lexis 4595, *12-*20 (discussing advent and 

history of corporate contributions limitations). 

As this Court explained in Beaumont, federal laws have 

barred direct corporate contributions for nearly a century, 

and since that original enactment, Congress has continued 

to attend to the problem of the corrupting potential of 

corporate contributions by strengthening and improving 

the prohibition on such contributions. See Beaumont, 

2003 U.S. Lexis 4595, *14-*16 (discussing legislative 

developments related to prohibitions on corporate 

contributions). In complete contrast, here, there is neither 

a claim nor the evidence supporting such a claim that 

political contributions by minors constitute the particular 

source of a corruption or distortion of the federal election 

process. Nor is there a history of Congress attacking the 

problems of that fictional corruption. Section 318 bars all 

political contributions by all minors – not because of a 

well-recognized and long-known problem of corruption 

resulting or being threatened by such donations – but 

because Congress chose to abrogate the constitutional 

rights of all minors rather than demand that the FEC and 
39 

the Department of Justice enforce existing laws against 

known malefactors. 

Instead, as the Government would have it, some parents 

will use their status as guardians of their minor children to 

direct contributions to candidates or committees. FEC JS 

at 28. In turn, the Government believes, the use of such 

conduit contributions will allow such parents to exceed the 

individual contribution limitations. Id. Thus, as the 

Government has always argued this point, the purpose of 

Section 318 is to address a category of abuses by parentdonors, not to cure a problem of corruption or distortion 

that is inherent in donations from minors. 

Moreover, the ban on corporate contributions 

effectively prevents the earnings of corporations from 

being transformed into political “war chests,” thereby 

avoiding “corruption or the appearance of corruption.” 

Beaumont, 2003 U.S. Lexis 4595, *16-*17 (discussing 

Federal Election Comm'n v. National Conservative 

Political Action Comm., 470 U.S. 480, 496-97 (1985)). 

No comparable threat emanated from the political 

donations of minors, which donations were, after all, 

subject to the same cap applicable to all other individuals. 

Prior to the effective date of Section 318, minors were 

subject to precisely the same contribution limitations as 

others. Buckley affirmed that limitation, and this Court 

concluded that Congress acted within reason in allowing 

contributions while capping their amounts. Section 318 

stands in stark contrast to that reasonable approach. 

The corporate contribution ban is also directed to the 

service of other interests that are not at stake when minors 
40


make political contributions. Chief among those interests 

is protection of those individuals who have paid money 

into a corporation or union for other purposes, insuring 

that the money they have paid in for other reasons is not 

converted into support for political candidates to whom 

they may be opposed. Beaumont, 2003 U.S. Lexis 4595, 

*17-*18. Section 318 does not serve any comparable 

purpose. As the evidence in this case demonstrated, 

Section 318 prevents minors who have earned their own 

money from giving it to candidates of their choosing. No 

pockets are picked, as it were, when minors donate money 

they have earned by working as a church secretary39 or 

from selling home-made crafts.40 

Finally, in Beaumont, this Court concluded that while 

the provision in dispute barred direct contributions, the 

ban on donations by corporations was not a complete 

prohibition on donations. This Court reasoned that the ban 

was not complete because corporations were permitted to 

establish and pay the administrative expenses of PACs 

that, in turn, can make such contributions. Beaumont, 

2003 U.S. Lexis 4595, *32 (“NCRL is simply wrong in 

characterizing [the provision] as a complete ban . . . . The 

PAC option allows corporate political participation 

39. JA 411 (Declaration of Hannah McDow, ¶ 25) (“I work as 

a secretary in the office at our church, and have income regularly 

from that job”). 

40. JA 415 (Declaration of Isaac McDow, ¶ 24(b)) (“I make 

small Christmas crafts and sell them”). 
41 

without the temptation to use corporate funds for political 

influence”). 

In contrast here, Section 318 is admittedly a complete 

prohibition, see FEC Resp. at 9 n.4 (describing Section 

318 as imposing an “absolute ban on campaign 

contributions by minors”). Worse, while this Court has 

rejected the claim that “regulatory burdens on PACs, 

including restrictions on their ability to solicit funds, 

rendered a PAC unconstitutional as an advocacy 

corporation’s sole avenue for making political 

contributions,” Beaumont, 2003 U.S. Lexis 4595, *33, 

there is no cognate activity available to minors that this 

Court has concluded equates so closely with contributions 

that it renders the prohibition in Section 318 as something 

less than complete. Thus, unions and corporations – 

including nonprofit advocacy ones such as in Beaumont – 

have an outlet for their expressed desire to support 

candidates and committees of political parties, by 

establishing and paying the expenses of PACs. But 

Congress has stripped from minors their right to make 

political contributions without any similar other avenue 

that this Court has passed upon as not imposing excessive 

regulatory burdens. 

II. THE VOIDABILITY OF MINORS’ GIFTS DOES 

NOT JUSTIFY SUPPRESSING MINORS’ 

CONSTITUTIONAL RIGHTS 

The FEC asserts that the right of minors to rescind a gift 

provides a basis for concluding that Section 318 is 

constitutional. See FEC Resp. at 4 and n.2. The FEC 

asserts that the common law incapacity of a minor results 
42


in a rule the logic of which dictates that 

a minor who contributed money to a candidate for 

federal office might retain the right to ‘disaffirm’ the 

contribution and to insist upon the return of the 

funds at any time before he reached majority if (for 

example) he became dissatisfied with the candidate’s 

performance during the campaign or in office. 

Id. That contention is flawed for at least two reasons. 

First, there is nothing in BCRA – not in its text nor its 

legislative history – to indicate that donation rescission 

concerned the Congress at all. Second, the FEC’s 

argument fails to account for the fact that the right to hold 

an opinion and to express it to others serves no valid 

function in a democracy if persuasion cannot be followed 

by conversion.41 Thus, the fact that a minor chooses to 

support a candidate one day, and changes her mind the 

next, perhaps in response to new information about the 

positions taken by the candidate on issues of public policy, 

cannot be the basis for denying a constitutional right. 

There are now, and have been for many years, two 

forms of equivocation in political alignment and support 

that are directly relevant to the questions raised by the 

41. Even this Court reserves to itself the prerogative of 

changing its mind. See Lawrence v. Texas, 2003 U.S. Lexis 5013, 

*35-*36 (U.S. June 26, 2003) (overruling Bowers v. Hardwick, 478 

U.S. 186 (1986)); 2003 U.S. Lexis 5013, *35-*36 (“Bowers was 

not correct when it was decided, and it is not correct today. It 

ought not to remain binding precedent. Bowers v. Hardwick should 

be and now is overruled”). 
43


FEC’s claim. First, there are the cases of politicians, 

office-holders and office-seekers, who switch political 

parties. Second, there are the cases of candidate 

endorsements made and withdrawn. 

Both of these practices affirm the healthy volatility of 

the political process in our Nation. On this practical level, 

the Nation has witnessed and welcomed a steady train of 

party-switching and endorsement-withdrawal. Indeed, the 

present membership of the United States Congress 

includes six members, three in each House, that have 

exercised this cherished right to change political 

affiliations.42 In fact, “party-switching” has a venerable 

history.43 Nor is party-switching limited to members of 

42. Present members of Congress that have changed party 

affiliations are: James Jeffords of Vermont; Ben Nighthorse 

Campbell of Colorado; Richard Shelby of Alabama; Virgil Goode 

of Virginia; Billy Tauzin of Louisiana; and, Nathan Deal of 

Georgia. See Inside Politics: Party Switchers, Past and Present, 

http://www.cnn.com/2001/ALLPOLITICS/05/23/switchers.list; 

Biographical Directory of the United States Congress, 

http://bioguide.congress.gov/biosearch/biosearch.asp. 

43. Senators Bob Smith of New Hampshire; Phil Gramm of 

Texas; Harry Byrd Jr. of Virginia; Strom Thurmond of South 

Carolina; Wayne Morse of Oregon; Henrik Shipstead of 

Minnesota; George Norris of Nebraska; Robert La Follette Jr. of 

Wisconsin; Miles Poindexter of Washington; Fred Dubois of 

Idaho; Frank Cannon of Utah; Richard Pettigrew of South Dakota; 

Lee Mantle of Missouri; Henry Teller of Colorado; John P. Jones 

of Nevada; and, William M. Stewart of Nevada. Representatives 

Matthew Martinez of California; Michael Forbes of New York; 
44


Congress.44 

Moreover, beyond party realignment, the practice of 

making and then withdrawing an endorsement is wellknown.45 Both acts – expressing support for a candidate 

Jimmy Hayes of Louisiana; Mike Parker of Mississippi; Greg 

Laughlin of Texas; Tommy Robinson of Arkansas; Bill Grant of 

Florida; Andy Ireland of Florida; Phil Gramm of Texas; Eugene 

Atkinson of Pennsylvania; and, Bob Stump of Arizona. See Inside 

Politics: Party Switchers, Past and Present, 

http://www.cnn.com/2001/ALLPOLITICS/05/23/switchers.list; 

Biographical Directory of the United States Congress, 

http://bioguide.congress.gov/biosearch/biosearch.asp. 

44. Other notables include Ronald Reagan and Justice Joseph 

Story and at least three Governors, Mike Foster of Louisiana, 

George Hoadly of Ohio, and, John Connally of Texas. See 

Encyclopedia Americana: Ronald Reag a n 

http://gi.grolier.com/presidents/ea/bios/40preag.html; R. Kent 

Newmyer, Supreme Court Justice Joseph Story, 71 Cornell L. Rev. 

726, 728 (1996); Gary D. Allison, Protecting Party Purity in the 

Selection of Nominees for Public Office: The Supremes Strike 

Down California's Blanket Primaries and Endanger the Open 

Primaries of Many States, 36 Tulsa L.J. 59, 112-13 (2000); 

Michael Les Benedict, Salmon P. Chase and Constitutional 

Politics, 22 Law & Soc. Inquiry 459, 497 n.7 (1997); Marianne 

Means, Parties Reward Converts; Voters Don't, South Coast 

Today, http://www.s-t.com/daily/04-96/04-15-96/5convert.htm. 

45. Recent examples abound. See Jim Tharpe, Abortion Foes 

Split On Chambliss, Atlanta Journ. and Const., October 22, 2002, 

at 5B (Georgia pro-life organization withdraws support for Senate 

candidacy of Saxby Chambliss); Frank Bruni, Gary Condit Is Still 

Running, N.Y. Times, February 17, 2002, § 6, at 30 
45


and changing one’s mind and withdrawing that support – 

embody the exercise of constitutional rights of freedom of 

speech and association. In fact, those acts are 

indistinguishable in effect from the voidability of minors’ 

gifts that so troubles the FEC here. Without the right to 

express a change in views, the right to hold an opinion and 

to express it to others is of doubtful value. While it is true, 

as Justice Holmes famously explained, “every idea is an 

incitement,” the application of that constitutional bon mot 

commands the liberty to change one’s mind, to withdraw 

previously pledged support, and to communicate one’s 

change of heart or mind to others: 

It is said that this manifesto was more than a theory, 

that it was an incitement. Every idea is an 

incitement. It offers itself for belief and if believed it 

is acted on unless some other belief outweighs it or 

some failure of energy stifles the movement at its 

birth. The only difference between the expression of 

an opinion and an incitement in the narrower sense 

is the speaker's enthusiasm for the result. Eloquence 

(Representatives Nancy Pelosi and John Kasich withdraw their 

endorsements of Gary Condit); B. Drummond Ayres, Jr., 

Campaign Briefing, N.Y. Times, June 6, 2000, § A, at 21 

(Teamsters Union withdraws endorsements of LoisCapps and Tom 

Sawyer over the China trade bill); Inside, N.Y. Times, February 

14, 2000, § A, at 1 (Guy Molinari withdraws support for George 

W. Bush); Wayne King, Anti-Florio Fever Is Giving Headache to 

a Democrat, N.Y. Times, October 27, 1990, § 1, at 25 (the 

Women’s Political Caucus of New Jersey withdraws endorsement 

of Dan Mangini over his stance on abortion). 
46


may set fire to reason. But whatever may be thought 

of the redundant discourse before us it had no chance 

of starting a present conflagration. If in the long run 

the beliefs expressed in proletarian dictatorship are 

destined to be accepted by the dominant forces of the 

community, the only meaning of free speech is that 

they should be given their chance and have their 

way. 

Gitlow v. New York, 268 U.S. 652, 673 (1925). 

The FEC is wrong, plain and simple. As the FEC 

acknowledges, the common law approach did not treat 

gifts by minors as void but merely voidable. FEC Resp. at 

4 n.2. The common law voidability of a minor’s gift does 

not present a ground for suppressing the constitutional 

rights of expression and association that are evinced by the 

contributions of minors. Not unless the right of candidates 

to change parties justifies a federal law prohibiting persons 

who change their minds from holding office. Not unless 

the right of political endorsers to withdraw their 

endorsements justifies a federal law suppressing freedom 

of political expression. 

III. THE BAN ON CONTRIBUTIONS BY MINORS 

IS OVERBROAD.46 

Judge Henderson correctly concluded that Section 318 

is unconstitutionally overbroad. Supp. App. 465sa. 

Section 318 prohibits every contribution of money by 

every minor to every candidate for every federal elective 

46. This separate ground for affirmance is fully supported by 

the record. 
47


office and to every committee of every political party. The 

ban – the “absolute prohibition” as the FEC describes it, 

see Response of FEC to Joint Motion at 9 n.4 – is quite 

broad. 

Unlike 2 U.S.C. §§ 441a and 441f, which precisely 

target conduit giving and excess contributions, Section 318 

fails to narrowly focusing on the problem of conduit 

contributions by parents and guardians through their minor 

children. The ban demonstrates no facile sensitivity in its 

casting at all. Caught up alike in the Government’s net are 

the young Democrats, the young Libertarians, and even the 

young Republican whose work in her own pet sitting 

service makes possible small donations to congressional 

candidates.47 True enough Section 318 prohibits those 

donations, few in number by the Government’s own 

admission, that are directed by their parents and violated 

existing law before the adoption of Section 318. 

This same dragnet sweeps in the servicemen and 

women who defend our Nation while still in their 

minority, 10 U.S.C. § 505 (2002). Even emancipated 

minor females – whose judgments about such life and 

death matters as abortion are bound to be respected by the 

law – are treated like infants. But see, e.g., Ohio v. Akron 

Center for Reproductive Health, 497 U.S. 502, 507 (1990) 

(affirming constitutionality of Ohio law criminalizing 

abortions performed on unemancipated minors, except in 

circumstances comporting with the constitutional 

requirements). Minors – such as these Appellees – who 

47. See JA 586-87 (Declaration of Jessica Mitchell, ¶ 22). 
48


possess independence of judgment and separate financial 

means to make such donations fall prey to Section 318.48 

This ban is not limited to parents or guardians with a 

history of bad conduct; it assumes that no minor is to be 

trusted not to abuse his or her rights. 

This is a case of inherent overbreadth. Section 318 

does not take aim at a suspect behavior and have the 

unfortunate side effect of collateral damage to 

constitutionally protected conduct: “there is no core of 

easily identifiable and constitutionally proscribable 

conduct that the statute prohibits.” Secretary of State v. J. 

H. Munson Co., 467 U.S. 847, 865-66 (1984). See id. at 

864-65 (in case of inherent overbreadth, the more 

demanding “substantial overbreadth” test does not apply). 

This ban “does not aim specifically at evils within the 

allowable area of State control but, on the contrary, 

sweeps within its ambit other activities that in ordinary 

circumstances constitute an exercise of [constitutional] 

freedom[s].” Thornhill v. Alabama, 310 U.S. 88, 97 

(1940). Such an “overbroad” law “directly restricts 

protected expressive activity and does not employ means 

48. The view that categories of minors possess judgmental 

maturity and independence of judgment animated Congress when 

it enacted the Equal Access Act of 1984, Title 20 U.S.C. § 4071, 

et seq. See Westside Comm. Schools v. Mergens, 496 U.S. 226, 

250-51 (1990) (discussing judgmental maturity of minors and 

congressional determination regarding it). Unsurprisingly, experts 

in adolescent psychology and development affirm the important 

developmental value of inclusion in the political process. See Brief 

Amicus Curiae of David Moshman Supporting Minor Appellees. 
49


narrowly tailored to serve a compelling governmental 

interest.” Munson, 467 U.S. at 965 n.13. The ban flies in 

the face of established doctrine: “Precision of regulation 

must be the touchstone in an area so closely touching our 

most precious freedoms.” Riley v. National Fed’n of the 

Blind, 487 U.S. 781, 801 (1988) (internal quotation marks 

and citation omitted). 

IV. SECTION 318 VIOLATES THE MINORS’ 

RIGHTS TO EQUAL PROTECTION.49 

Section 318 also violates these Appellees’ rights to 

equal protection guaranteed to them by the Fifth 

Amendment Due Process Clause. The ban on political 

contributions selects out those who are less than eighteen 

years of age. Section 318 then subjects those selected out 

to special disabilities with respect to their exercise of 

constitutional rights of expression and association. Put 

another way, a minor’s exercise of fundamental First 

Amendment rights is differentially burdened, in an 

unjustifiable manner, because of age. 

Because Section 318 burdens the exercise of 

fundamental rights in this way, it is subject to strict 

scrutiny. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 

(1988) (noting use of strict scrutiny for “classifications 

based on race or national origin and classifications 

affecting fundamental rights”). Of course, Section 318 

fails even the more complaisant First Amendment analysis 

called for in Buckley. Consequently, because it cannot 

49. This separate ground for affirmance is fully supported by 

the record. 
50 

pass muster under the more rigorous standards discussed 

in the preceding sections, it fail constitutional analysis 

under strict scrutiny. 

CONCLUSION 

The judgment of the District Court – holding that 

Section 318 of the Bipartisan Campaign Reform Act 

unconstitutional – should be affirmed. 

Respectfully submitted, 

JAMES BOPP, JR.


RICHARD E. COLESON


THOMAS J. MARZEN


JAMES MADISON CENTER


FOR FREE SPEECH 

BOPP, COLESON & BOSTROM 

1 South 6th Street 

Terre Haute, IN 47807-3510 

(812) 232-2434 

Attorneys for Appellee Barrett 

Austin O’Brock 

August 20, 2003. 

JAY ALAN SEKULOW 

Counsel of Record 

JAMES M. HENDERSON, SR.


STUART J. ROTH


COLBY M. MAY


JOEL H. THORNTON


WALTER M. WEBER


AMERICAN CENTER FOR LAW


& JUSTICE 

201 Maryland Avenue NE 

Washington, DC 20002-5703 

(202) 546-8890 

Attorneys for Appellee Emily 

Echols, et al.