No. 02-1676 and consolidated cases 

IN THE 

S upreme Cou rt of the U nited S tate 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 

Brief of Amicus Curiae 

Professor David Moshman 

Supporting Appellees 

Kevin H. Theriot


P.O. Box 1090


Dacula, GA 30019


7 Lumpkin Street


Lawrenceville, GA 30046


(770) 995-9144


(770) 995-0910


Attorney for Amicus Curiae 
TABLE OF CONTENTS 

Page


TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii


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


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


ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


I.	 Adolescents Are Capable of Making Independent


Choices Regarding Support of Political Causes


and Candidates. . . . . . . . . . . . . . . . . . . . . . 4


II.	 Prohibiting Adolescents From Making Campaign


Contributions Has an Adverse Effect on Educating


Young People in the Political Process. . . . . 6


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


i 
TABLE OF AUTHORITIES 

Page(s) 

CASES 

Bellotti v. Baird, 443 U.S. 622 (1979) . . . . . . . . . . 5,6


Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . 3


Ginsberg v. New York, 390 U.S. 629 (1968) . . . . . 5


STATUTES AND LEGISLATIVE MATERIALS


Bipartisan Campaign Reform Act of 2002 (BCRA),


Pub. L. No. 107-155, 116 Stat. 81 Section 318


(enacted at 2 USC § 441k (2003)) . . . . . . . . . . . . . passim�

OTHER AUTHORITIES


C.C. Helwig, Continuity and Discontinuity in Moral�

Judgment, Paper presented at the annual meeting


of the Jean Piaget Society (1991) . . . . . . . . . . . . . . 5


David Moshman, Adolescent Reasoning and Adolescent�

Rights, 36 Human Development 27 (1993) . . . . . . 4,5,6,7


David Moshman, Adolescent Psychological Development: 


Rationality, Morality, and Identity (1999) . . . . . . . 7,8


ii 
INTEREST OF AMICUS1 

David Moshman is a Professor of Educational 

Psychology at the University of Nebraska-Lincoln. He obtained 

his Ph.D., in Developmental Psychology from Rutgers 

University in 1977, M.S., in Developmental Psychology from 

Rutgers University in 1975, and B.A. in Psychology from 

Lehigh University in 1971. 

Professor Moshman’s expertise centers on the 

development of reasoning, rationality, morality, and identity in 

adolescence and early adulthood. This includes (a) logical and 

scientific reasoning; (b) the rational basis for morality and 

identity; and (c) the role of intellectual freedom in development 

and education. He has been regularly teaching a course on 

cognitive development since 1977 and a course on adolescent 

development since 1985. Dr. Moshman is serving or has served 

on the editorial boards of seven journals including Child 

Development, Journal of Research on Adolescence, Journal of 

Adult Development, and Developmental Review, and presently 

serves as Book Review Editor for the Journal of Applied 

Developmental Psychology and as Associate Editor of 

Educational Psychology Review. 

Recent publications related to adolescent development 

authored by Dr. Moshman include: 

1. David Moshman, Cognitive development beyond 

1

The Department of Justice has consented to the filing of this brief as 

indicated in the copy of their letter being filed instanter. All other 

represented parties have filed written consents to the filing of amicus with 

the Court. Pursuant to Rule 37.6, amicus discloses that no counsel for any 

party in this case authored this brief in whole or in part and that monetary 

contribution to the preparation of this brief was received from the non-profit 

group, Justice Advocates. 

1 
2


childhood. In W. Damon (Series Ed.) & D. Kuhn & R. Siegler 

(Vol. Eds.), Handbook of child psychology: Vol. 2. Cognition, 

perception and language (5th ed., pp. 947-978) (1998). 

2. David Moshman, Adolescent psychological 

development: Rationality, morality, and identity (1999). 

3. David Moshman, Developmental change in 

adulthood. In J. Demick & C. Andreoletti (Eds.), Handbook of 

adult development (pp. 43-61) (2003). 

In 1990, Professor Moshman filed an amicus curiae brief with 

this Court in Bd. of Education, Westside Community Schools v. 

Mergens, 496 U.S. 226 (1990). 

The present case, in part, considers the constitutionality 

of Section 318 of the Bipartisan Campaign Reform Act of 2002 

(BCRA), Pub. L. No. 107-155, 116 Stat. 81 (enacted at 2 USC 

§441k (2003)), which prohibits minors from contributing to the 

committees of political parties and to candidates for federal 

office. This provision clearly restricts the freedom of minors to 

support political causes and candidates, which is of particular 

concern to Professor Moshman because of his interest and 

expertise in the intellectual and moral development of 

adolescents. 

SUMMARY OF ARGUMENT 

BCRA eliminates all opportunity for minors to exercise 

their free speech rights to support federal political candidates or 

their parties by making contributions to them. Section 318 of 

BCRA states: 

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 
3


party. 

Title III, § 318, H.R. 2356, 107th Cong. (2002) (enacted at 2 

USC §441k (2003)). This provision completely ignores the 

similarities between adolescents2 and college aged adults, and 

the profound differences between adolescents and elementary 

aged children, in their ability to understand civic issues. 

Research indicates that most adolescents are just as 

capable as most college aged individuals of comprehending 

abstract political issues such as civil rights. Moreover, 

encouraging adolescents to analyze current societal issues and 

make their voices heard in the political arena on matters of 

interest to them is a vital part of their educational process. 

When the government flatly prohibits adolescents from 

speaking in the form of making contributions, it greatly 

diminishes the ability of parents and educators to instruct these 

young people on how to be contributing citizens in our 

democratic society. The best method of teaching, especially 

young people, is to give the students direction and then 

encourage them to try it themselves. Section 318 makes it 

difficult, if not impossible, to teach adolescents how to swim in 

the process of political contributions, because it prevents them 

from getting in the pool. 

ARGUMENT 

Our society and this Court have recognized that an 

important method of expressing one’s support of a candidate for 

office, or political party, is to contribute funds to them. Buckley 

v. Valeo, 424 U.S. 1, 14 (1976). The United States Government 

has taken this right away from all minors, including 

adolescents, based solely on the interest of prohibiting their 

2

In this brief, the term “adolescents” generally refers to children ages 12 

through 17. 
4


parents from circumventing ceilings on amounts given by 

donating in the names of their minor children. No interest in 

protecting children has ever been asserted in this case as a 

rationale for prohibiting political contributions of minors. In 

fact, research indicates that adolescents can and should 

participate in the process of supporting political causes and 

candidates in order to learn about our democratic system of 

government. 

I.	 ADOLESCENTS ARE CAPABLE OF MAKING 

INDEPENDENT CHOICESREGARDINGSUPPORT 

OF POLITICAL CAUSES AND CANDIDATES. 

By enacting Section 318, Congress has made a 

distinction between most college students, and adolescents who 

are in high school.3 But studies in this area indicate that 

adolescents are capable of understanding and making rational 

judgments regarding their civic duties and liberties as citizens. 

“Sophisticated conceptions of civil liberties 

...emerge by early adolescence and are used to 

evaluate social events.” . . .To the extent that 

understanding of intellectual freedom involves 

an ability to make abstract judgments 

independent of content, the results support the 

view that the nature of intellectual freedom is 

understandable by early adolescence. 

David Moshman, Adolescent Reasoning and Adolescent Rights, 

36 Human Development 27, 32-33 (1993) (“Adolescent 

Reasoning”) (quoting C.C. Helwig, Continuity and 

3

It is worth noting, however, that many college students are seventeen years 

of age when they begin their secondary education. Even though they can 

attend college, often times hundreds of miles away from home, they cannot 

make political contributions because they are under eighteen. 
5 

Discontinuity in Moral Judgment, Paper presented at the annual 

meeting of the Jean Piaget Society (1991)). Adolescents have 

the ability to learn about political issues, formulate opinions 

regarding these issues, and express these opinions to their peers 

as well as society as a whole. 

In this regard, even adolescents ages 12 and 13 are more 

like college students than like students in elementary school. 

“[S]tudies showed that with brief instruction, involving 

definition of validity, examples, and/or feedback, seventh 

graders were comparable to college students in their ability to 

distinguish the validity of arguments from the truth or falsity of 

their content, whereas fourth graders did not profit from such 

instruction.” Adolescent Reasoning at 33. 

There may be occasions when adolescents need to be 

protected from physical and psychological harm as they are 

developing, and should not be treated the same as adults. For 

instance, this Court has upheld restrictions on minors’ access to 

obscene material, see Ginsberg v. New York, 390 U.S. 629, 637-

38 (1968), and to abortion, see Bellotti v. Baird, 443 U.S. 622, 

634 (1979). However, there is no similar possible harm to 

adolescents in allowing them to express themselves and 

associate with, for instance, an individual running for senate, by 

giving them a donation. 

One might, for example, argue for a more 

stringent criterion of maturity with respect to 

freedom to engage in potentially harmful overt 

behaviors (such as use of guns, cars, or legal 

drugs) than with respect to expression of beliefs 

(such as advocacy of gun control or drug use). 

Ideas can be dangerous, of course, but the 

dangers of expression, compared to those of 

overt action, are likely to be long-term, 

speculative, and reversible through discussion. 
6 

Adolescent Reasoning at 36. 

The government has prohibited adolescents from 

expressing their support for, and associating with, political 

causes and candidates by giving money. There is no evidence 

that adolescents are incapable of properly wielding this 

freedom, or that allowing such expression will cause them any 

harm. On the contrary, as indicated below, it will help them 

learn how to be a contributing member of our democratic 

society. 

II.	 PROHIBITING ADOLESCENTS FROM MAKING 

CAMPAIGNCONTRIBUTIONS HASANADVERSE 

EFFECT ON EDUCATING YOUNG PEOPLE IN 

THE POLITICAL PROCESS. 

Some of the justifications this Court has recognized as 

a basis for restricting the rights of minors are a child’s “inability 

to make critical decisions in an informed, mature manner, and 

the importance of the parental role in child rearing.” Bellotti v. 

Baird, 443 U.S. 622, 634 (1979). However, Section 318 

actually inhibits an adolescent’s ability to learn how to make 

critical decisions, and infringes upon the parental role in child 

rearing. 

“[C]urrent theory and research suggest that, if there is 

ever a time when the opportunity to generate, explore, and 

discuss ideas freely is especially critical to one’s development, 

it is adolescence.” Adolescent Reasoning at 34. Becoming 

involved in the campaign process is an excellent opportunity for 

adolescents to learn by analyzing the different positions of 

candidates and parties, then developing and expressing their 

own views on these positions. 

It is widely agreed that learning and 
7


development are positively related to the 

opportunity to interact freely with peers, to 

consider multiple points of view, to formulate 

and express one’s own ideas, to reflect on one’s 

own thinking, and to work at resolving 

cognitive contradictions and social conflicts. 

...Students should have broad access to 

information and ideas and should be actively 

encouraged to formulate, express, and discuss 

their views. 

Adolescent Reasoning at 35. See also DAVID MOSHMAN, 

ADOLESCENT PSYCHOLOGICAL DEVELOPMENT: RATIONALITY, 

MORALITY, AND IDENTITY 113 (1999) (“ADOLESCENT 

PSYCHOLOGICAL DEVELOPMENT”) (“one would expect the 

construction of rationality to be facilitated by social 

environments in which individuals have free access to 

information and ideas and are encouraged to formulate, express, 

discuss, and justify ideas of their own.”) 

Most parents want their adolescent to learn the 

importance of independent thinking and political expression. 

Section 318 completely eliminates parents’ ability to teach their 

children through hands on experience how to express their 

political views by donating money. Research indicates that 

“[g]overnmental restrictions on adolescents, then, merit critical 

scrutiny because they are likely to interfere not only with 

adolescent autonomy but with family relations and cultural 

practices.” Adolescent Reasoning at 37. See also id. at 38 (“the 

sorts of restrictions on adolescents most likely to be justifiable 

are restrictions by parents on their own children’s overt 

behavior. ...[T]he sorts of restrictions least likely to be 

justifiable are restrictions by governmental agents on 

adolescents’ beliefs, expression, and access to information and 

ideas.”) 
8


Teaching adolescents how to become informed, 

contributing participants in the political process not only 

benefits them, but is vital to the health and future of our 

democratic society. As noted by a distinguished philosopher of 

education, Israel Scheffler, 

[t]he function of education in democracy is 

rather to liberate the mind, strengthen its critical 

powers, inform it with knowledge and the 

capacity for independent inquiry, engage its 

human sympathies, and illuminate its moral and 

practical choices. This function is, further, not 

to be limited to any given subclass of members, 

but to be extended, in so far as possible, to all 

citizens, since all are called upon to take part in 

the processes of debate, criticism, choice, and 

co-operative effort upon which the common 

social structure depends. 

Adolescent Psychological Development at 112. 

Simply put, learning how to express oneself in the 

political arena by contributing funds to candidates and parties 

is an important lesson to be learned as an adolescent. By 

eliminating the crucial teaching tool of hands on experience, the 

government has tied the hands of parents and educators 

attempting to accomplish this task. 

CONCLUSION 

The foregoing research and analysis demonstrate 

adolescents are mature enough to properly exercise the freedom 

to make the political contributions that BCRA prohibits. 

Moreover, the prohibition on campaign contributions adversely 

affects adolescents by eliminating an important learning tool 

during a critical time for educating young people in the political 
9


process. 

Therefore, the judgment below holding Section 318 of 

BCRA unconstitutional should be affirmed. 

Respectfully submitted, 

Kevin H. Theriot


P.O. Box 1090


Dacula, Georgia 30019


7 Lumpkin Street


Lawrenceville, Georgia 30046


(770) 995-9144


(770) 995-0910


Attorney for Amicus Curiae