NO. 12-536

In the

Supreme Court of the United States ________________

SHAUN MCCUTCHEON AND

REPUBLICAN NATIONAL COMMITTEE,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

________________

On Appeal from the United States 

District Court for the District of Columbia 

________________

REPLY BRIEF FOR 

APPELLANT SHAUN MCCUTCHEON ________________

Erin E. Murphy

BANCROFT PLLC

1919 M Street, NW

Suite 470

Washington, DC 20036

Dan Backer

Paul Henry Jossey

DB CAPITOL 

STRATEGIES, PLLC

717 King Street

Suite 300

Alexandria, VA 22314

Michael T. Morley

Counsel of Record

223 Pawnee Road

Cranford, NJ 07016

(860) 778-3883

michaelmorleyesq

@hotmail.com

Jerad Wayne Najvar

NAJVAR LAW FIRM

1 Greenway Plaza

Suite 100 

Houston, TX 77046

Counsel for Plaintiff-Appellant Shaun McCutcheon

August 19, 2013
TABLE OF CONTENTS

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

REPLY BRIEF.............................................................1

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

I. BCRA’S AGGREGATE CONTRIBUTION 

LIMITS SUBSTANTIALLY BURDEN 

CORE FIRST AMENDMENT RIGHTS ..............3

II. BCRA’S AGGREGATE LIMITS DO NOT 

FURTHER AN IMPORTANT 

GOVERNMENT INTEREST................................8

A. There Is No Cognizable Circumvention 

Problem for BCRA’s Aggregate Limits to 

Address ..........................................................9

B. Buckley Does Not Relieve the 

Government of Its Burden of 

Establishing that BCRA’s Aggregate 

Limits Are Constitutional............................16

III. EVEN IF BCRA’S AGGREGATE LIMITS 

SERVE AN IMPORTANT INTEREST, 

THEY ARE NOT REMOTELY 

ADEQUATELY TAILORED ..............................20

CONCLUSION ..........................................................26
ii

TABLE OF AUTHORITIES

Cases

Arizona Free Enter. Club’s

Freedom Club PAC v. Bennett, 

131 S. Ct. 2806 (2011) ................................ passim

Buckley v. Valeo, 

424 U.S. 1 (1976) ........................................ passim

Citizens Against Rent Control/Coalition 

for Fair Hous. v. City of Berkeley, Cal., 

454 U.S. 290 (1981) ................................10, 18, 21

Citizens United v. FEC, 

558 U.S. 310 (2010) ............................................20

Colorado Republican Fed.

Campaign Comm. v. FEC, 

518 U.S. 604 (1996) ......................................11, 12

Davis v. FEC, 

554 U.S. 724 (2008) ......................................4, 5, 8

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) ..............................................6

FEC v. Nat’l Conservative 

Political Action Comm., 

470 U.S. 480 (1985) ..................................2, 11, 12

FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007) ..............................2, 8, 16, 22

McConnell v. FEC, 

540 U.S. 93 (2003) ..........................................8, 20

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000) ............................................22

Randall v. Sorrell, 

548 U.S. 230 (2006) ........................................7, 20
iii

Witters v. Wash. Dep’t of Servs. for Blind, 

474 U.S. 481 (1986) ............................................12

Zelman v. Simmons-Harris, 

536 U.S. 639 (2002) ............................................12

Statutes & Regulation

2 U.S.C. § 431(17)........................................................7

2 U.S.C. § 432(e)(3)(A)(ii) ..........................................23

2 U.S.C. § 441a(a).............................................. passim

2 U.S.C. § 441f ...........................................................10

11 C.F.R. § 102.17................................................23, 24

Other Authorities

Democratic Party of N.M., Report of Receipts 

and Disbursements (Apr. 8, 2013), 

http://images.nictusa.com/pdf/488/13961

253488/13961253488.pdf...............................14-15

William N. Eskridge, Jr., Vetogates, Chevron, 

Preemption, 83 Notre Dame L. Rev. 1441

(2008) ..................................................................24

Samuel Issacharoff & Pamela S. Karlan, 

Where to Draw the Line?: Judicial 

Review of Political Gerrymanders, 

153 U. Pa. L. Rev. 541 (2004).............................25

Missouri Democratic State Comm., 

Report of Receipts and Disbursements

(May 13, 2013), 

http://images.nictusa.com/pdf/727/13962

195727/13962195727.pdf....................................15
REPLY BRIEF

The Bipartisan Campaign Reform Act’s (“BCRA”)

aggregate contribution limits unconstitutionally 

burden fundamental First Amendment rights. The 

government’s attempts to demonstrate otherwise 

only underscore that imposing an ultimate limit on 

how many otherwise permissible contributions 

someone may make does not further any legitimate 

anti-corruption or anti-circumvention interest. Nor, 

under this Court’s precedents, may aggregate limits 

be justified as a means of equalizing the relative 

ability of individuals to participate in the political 

process or preventing the kind of “influence” or 

“gratitude” this Court has already concluded does not 

constitute corruption. 

Rather than attempt to defend BCRA’s aggregate 

limits on their own terms, the government devotes 

the bulk of its brief to insisting that this Court’s oneparagraph discussion upholding the Federal Election 

Campaign Act’s (“FECA”) aggregate contribution 

ceiling in Buckley v. Valeo, 424 U.S. 1, 38 (1976)—a 

decision that emphasized that this issue was not 

“separately addressed at length by the parties”—

somehow forecloses challenges to BCRA’s distinct 

provision. In doing so, the government largely 

ignores fundamental differences between FECA and 

BCRA, as well as key changes in this Court’s 

campaign finance jurisprudence in the four decades

since Buckley. Critically, FECA contained no limits 

at all on contributions to a political party committee

or political action committee (“PAC”). The Court’s 

decision to uphold an aggregate ceiling in that 

context in no way compels the conclusion that 
2

Congress may impose aggregate limits in a scheme 

that contains not only a full complement of base 

limits, but numerous much more direct anticircumvention measures as well. Nor, as this Court’s 

post-Buckley decisions confirm, is there any 

circumvention concern to address when someone who 

has contributed the maximum permissible amount to 

a candidate also contributes unearmarked funds 

within base limits to a political committee that, 

without “prearrangement” or “coordination” with the 

contributor, independently chooses to make a 

contribution within base limits to the same 

candidate. FEC v. Nat’l Conservative Political Action 

Comm. (“NCPAC”), 470 U.S. 480, 498 (1985). 

Even assuming aggregate limits serve some valid 

anti-circumvention purpose, they are not remotely 

adequately tailored to do so, and instead are nothing 

more than impermissible prophylaxis-uponprophylaxis. Sweeping in far more First Amendment 

activity than there is any reason to suspect raises

circumvention concerns, they are a blunderbuss 

approach to concerns that readily could be addressed 

by much more targeted measures. If Congress is 

concerned about transfers between candidates and/or 

committees, or the mechanics of joint fundraising 

committees (“JFC”), then it should devise a solution 

to those concerns. What Congress may not do is use 

aggregate limits to “suppress lawful” First 

Amendment activity “as the means to suppress” some 

small sliver of “unlawful” activity. FEC v. Wis. Right 

to Life, Inc. (“WRTL II”), 551 U.S. 449, 475 (2007)

(plurality op.). 
3

ARGUMENT

I. BCRA’S AGGREGATE CONTRIBUTION 

LIMITS SUBSTANTIALLY BURDEN CORE 

FIRST AMENDMENT RIGHTS.

The government’s brief dramatically understates 

the severe burdens aggregate contribution limits 

impose on protected First Amendment activity. 

Whereas base limits restrict how much someone may 

contribute to a candidate or committee, aggregate 

limits effectively restrict how many candidates or 

committees to whom or which someone may 

contribute—even within the base limits Congress has 

already deemed sufficient to address any cognizable 

corruption concerns. The government inexplicably 

fights this premise, insisting that “aggregate 

contribution limits do not preclude a contributor from 

contributing to as many candidates, parties, and 

other committees as he desires.” FEC Br. 24. But 

this Court long has recognized that an aggregate 

contribution ceiling “does impose an ultimate 

restriction upon the number of candidates and 

committees with which an individual may associate 

himself by means of financial support.” Buckley, 424 

U.S. at 38 (emphasis added). Aggregate limits 

therefore differ in both kind and effect from base 

limits and impose far greater burdens on First 

Amendment activity. See McCutcheon Opening Br. 

24-31.

The government’s attempts to prove otherwise 

cannot be reconciled with this Court’s precedents or 

the realities of the constitutionally protected conduct 

Congress seeks to curtail. The government first 

insists any burden on fundamental rights is minimal 
4

because a contributor may increase the number of 

candidates to whom he may contribute by decreasing 

the size of his contributions. FEC Br. 24. At the 

outset, that argument ignores the expressive value of 

the size of a contribution. A $20 contribution sends a 

very different message than a $2,600 contribution 

regarding the strength of someone’s support for a 

candidate—especially if the same person contributes 

more to other candidates. See Buckley, 424 U.S. at 

21 (“the size of [a] contribution provides a very rough 

index of the intensity of the contributor’s support”). 

Depriving someone of the ability to give each 

candidate as much support as he chooses within the 

base limits Congress has already imposed to address 

corruption concerns plainly imposes a substantial 

burden on that First Amendment right.

That burden is particularly pernicious because 

this Court has emphatically rejected the notion that 

Congress may structure campaign finance laws to 

penalize those who “robustly exercise[] th[eir] First 

Amendment right[s].” Davis v. FEC, 554 U.S. 724, 

739 (2008) (striking down law that “require[d] a 

candidate to choose between the First Amendment 

right to engage in unfettered political speech” and 

avoiding a “penalty”); see also Arizona Free Enter. 

Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 

2818 (2011) (striking down law that imposed “‘a 

special and potentially significant burden’” on 

candidate for “choosing to exercise his First 

Amendment right to spend funds on behalf of his 

candidacy”). That is exactly what aggregate limits 

do. They deprive those who wish to support 

numerous candidates or committees of the same 

control over the size of their contributions as those 
5

who engage in less First Amendment activity. To put 

it in concrete terms, because of BCRA’s aggregate 

limits, someone who wanted to contribute to one 

candidate in every federal race in 2006 “would [have] 

be[en] limited to contributing $85.29 per candidate 

for the entire election cycle.” JS.App.14a. That is 

barely 2% of what individuals who exercised their 

First Amendment rights less robustly were allowed 

to contribute to their candidates of choice.

Rather than deny that aggregate limits impose 

special burdens on those who exercise their First 

Amendment rights vigorously, the government

simply insists that Davis and Bennett involved only 

independent expenditures, not contributions. FEC 

Br. 24. Bennett, however, invalidated a law that 

imposed special burdens on candidates based in large 

part on the amount of contributions they received. 

Bennett, 131 S. Ct. at 2813-14. Moreover, the 

government does not and cannot offer any principled 

basis for allowing Congress greater leeway to use 

aggregate limits to impose a “special and potentially 

significant burden,” Davis, 554 U.S. at 739, on 

individuals who exercise their First Amendment 

rights robustly by forcing them to choose among the 

candidates they wish to support up to the base limit. 

A “drag on First Amendment rights” does not become 

“constitutional simply because it attaches as a 

consequence of a statutorily imposed choice.” Id.

The government attempts to justify this penalty 

by noting that aggregate limits leave individuals free 

to “donat[e] ... time and energy” to as many 

candidates or committees as they chose. FEC Br. 22. 

Again, this ignores the distinct First Amendment 
6

burdens aggregate limits, as opposed to base limits, 

impose. When someone wants to express more 

support for one candidate than base limits allow, 

time and energy might offer a viable alternative. But

aggregate limits affect individuals who wish to 

support numerous, often geographically dispersed, 

candidates and committees. 

Notwithstanding the government’s vague 

allusions to the telephone and Internet, FEC Br. 23, 

there are obvious practical limitations on the ability 

to associate with and express support for numerous 

candidates and committees throughout the country.

Time and geographic constraints make it unrealistic 

to personally or physically participate in more than a 

few campaigns in any given election cycle. Moreover, 

a bumper, lapel, front lawn, or even Internet 

homepage has only so much space for stickers, 

buttons, lawn signs, and online banners, meaning 

any attempt to associate with and express support for 

a large number of candidates through such means 

tends to crowd out and dilute the impact of each 

individual communication. In any event, local means 

of expressing support such as lawn signs and bumper 

stickers do little for someone like McCutcheon, who 

wants to support 27 candidates spread across the 

country. Compl. ¶¶ 27-28 (Doc. 1). Thus, to the 

extent the government identifies alternative avenues 

for exercising First Amendment rights, they are 

much “more burdensome than the one [aggregate 

limits] foreclose[].” FEC v. Mass. Citizens for Life, 

Inc., 479 U.S. 238, 255 (1986) (plurality op.). 

The government’s contention that individuals 

still may make independent expenditures fares no 
7

better. FEC Br. 21-22. If that alone were enough to 

alleviate First Amendment concerns, then every 

contribution limit would survive constitutional 

scrutiny. But see Randall v. Sorrell, 548 U.S. 230 

(2006) (invalidating Vermont’s base contribution 

limits). Moreover, rather than offering an 

alternative means of associating with a candidate, 

independent expenditures require a substantial 

degree of dissociation between the speaker and 

candidate, lest the speaker’s communications be 

perceived as “coordinated” and subject to contribution 

limits. 2 U.S.C. § 431(17). In any event, when 

someone wishes to support multiple geographically 

dispersed candidates, preparing and distributing 

flyers, drafting letters to the editor, developing 

television or newspaper advertisements, and other 

such activities are much less readily available 

avenues of expression and association than making a

monetary contribution.

The burden imposed by aggregate limits is 

especially acute in primary elections. A contributor 

must make decisions about how many candidates to 

support and how much to contribute to each based in 

part on speculation about which and how many of 

those candidates will win their primaries and run in 

the general election, and how much support she may 

want to provide in that election. Aggregate limits 

thus pressure people to reduce the number or size of 

their contributions to avoid hitting their limit too 

early in an election cycle and retain flexibility should 

a special election or other unexpected development

arise. Cf. Bennett, 131 S. Ct. at 2328 (invalidating 

law that required privately funded candidate “to 

make guesses about how much he will receive in the 
8

form of contributions and supportive independent 

expenditures,” noting that “[h]e might well guess 

wrong”). 

In short, aggregate contribution limits 

substantially burden core First Amendment activity.

The government therefore bears a particularly heavy 

burden in establishing their constitutionality. See

Davis, 554 U.S. at 744 (“the strength of the 

governmental interest must reflect the seriousness of 

the actual burden on First Amendment rights”). 

Indeed, for all the reasons identified by the RNC and 

Appellants’ amici, such limits should be subject to 

strict scrutiny. See RNC Reply Br. 1-8; McConnell v. 

FEC, 540 U.S. 93, 141 n.43 (2003) (“the associational 

burdens imposed by a particular piece of campaignfinance regulation may at times be so severe as to 

warrant strict scrutiny”); Br. of Amicus Curiae Sen.

Mitch McConnell 4-22. But in the end, whether the 

Court applies strict or exacting scrutiny is beside the 

point because the government cannot carry its 

burden of establishing that BCRA’s aggregate limits 

are constitutional under either standard. 

II. BCRA’S AGGREGATE LIMITS DO NOT 

FURTHER AN IMPORTANT GOVERNMENT 

INTEREST.

This Court has deemed only two closely related 

interests sufficiently important to allow the 

government to abridge First Amendment rights

through contribution limits: avoiding corruption and 

avoiding the appearance of corruption. WRTL II, 551 

U.S. at 478-79. By extension, the Court also has 

recognized a government interest in preventing 

circumvention of anti-corruption measures. As the 
9

government’s arguments ultimately reveal, BCRA’s 

aggregate limits do not further any such interests.

Instead, at most, they serve only to limit the kind of 

“influence” or “access” this Court already has 

concluded does not constitute corruption, or promote

the kind of First Amendment “equalization” this 

Court has long rejected.

A. There Is No Cognizable Circumvention 

Problem for BCRA’s Aggregate Limits 

to Address. 

The government appears to accept that BCRA’s 

aggregate limits may be upheld only as anticircumvention measures—and for good reason, as 

they plainly do not combat corruption directly. 

Congress’s anti-corruption interest is limited to 

preventing actual or apparent quid pro quo 

corruption through massive contributions. Buckley, 

424 U.S. at 28. Congress has addressed that problem 

directly by imposing base limits on contributions to 

candidates, which already embody its judgment 

regarding the point at which the size of a 

contribution raises cognizable corruption concerns. 

There is no reason to assume that a candidate who 

receives a contribution within those base limits from 

an individual will suddenly become significantly 

more susceptible to quid pro quo corruption by that 

individual simply because the individual decides to 

make similar contributions to nine other candidates.

The government therefore bears the burden of 

demonstrating that aggregate limits are necessary to 

prevent circumvention of the base limits that already 

prevent the actuality or appearance of quid pro quo 

corruption. Citizens Against Rent Control/Coalition 
10

for Fair Hous. v. City of Berkeley, Cal., 454 U.S. 290, 

299 (1981). Its attempts to do so never get off the 

ground; the government identifies nothing 

whatsoever to substantiate its professed concern that 

allowing individuals to make contributions within 

allowable base limits to “too many” candidates or 

committees creates a cognizable circumvention 

concern. 

At the outset, the government’s argument is 

seriously undermined by the fact that BCRA already 

includes a plethora of much more direct anticircumvention measures designed to prevent the very 

problem aggregate limits purportedly address. See 

McCutcheon Opening Br. 40-43. For instance, under 

earmarking provisions enacted in FECA and retained 

by BCRA, if someone contributes to a candidate or 

committee with the “direct[] or indirect[]” 

understanding that those funds are to be transferred 

to a particular candidate, the transaction is treated 

as a direct contribution from the original contributor 

to the ultimate candidate recipient. 2 U.S.C. 

§ 441a(a)(8). BCRA also prohibits the making or 

receipt of a contribution “in the name of another,” id. 

§ 441f, meaning someone may not circumvent the

statute’s earmarking restrictions by funneling a 

contribution through another contributor. 

The government nevertheless insists aggregate 

limits are needed to prevent unearmarked 

contributions from finding their way back to a 

candidate to whom a contributor already has given 

the maximum permissible amount. To begin with, as 

McCutcheon pointed out in his opening brief (at 51-

52), that argument would justify virtually any 
11

aggregate limit, as the government never explains 

why someone’s tenth contribution is any more likely 

than his second or third contribution to find its way 

back to a particular candidate. But the government’s 

argument also suffers from the more fundamental 

flaw that the “circumvention” it hypothesizes lacks

the kind of coordination between candidate and 

contributor needed to give rise to a cognizable quid 

pro quo corruption concern under this Court’s 

precedents.

As this Court has explained time and again, 

when there is no “prearrangement or coordination”

between a candidate and someone who would like to 

spend money to support his candidacy, any such 

spending cannot function as “a quid pro quo for 

improper commitments from the candidate.” 

NCPAC, 470 U.S. at 495, 498; see also Colorado 

Republican Fed. Campaign Comm. v. FEC (“Colorado 

I”), 518 U.S. 604, 617-18 (1996) (“the constitutionally 

significant fact ... is the lack of coordination between 

the candidate and the source of the expenditure”). 

That is why the Court has repeatedly rejected 

independent expenditures limits—the “absence of 

prearrangement and coordination,” NCPAC, 470 U.S. 

at 498, ensures a “separation between candidates and 

independent expenditure groups” that “negates the 

possibility that independent expenditures will result 

in the sort of quid pro quo corruption with which [the

Court’s] case law is concerned.” Bennett, 131 S. Ct. 

at 2826-27. 

The government faces the same problem here. 

Precisely because the source of an unearmarked 

contribution, by definition, may not “in any way ... 
12

direct[]” the subsequent disposition of those funds, 2 

U.S.C. § 441a(a)(8), any contribution that a party 

committee or PAC makes to a candidate may not be 

attributed to its contributors. A committee’s free, 

independent, and uncoordinated decisions about the 

candidates to which it will contribute prevent any

risk of corruption with respect to those candidates 

and the committee’s contributors. NCPAC, 470 U.S. 

at 495; Colorado I, 518 U.S. at 617-18.

In that sense, an unearmarked contribution is 

like a general grant of government funding. As the 

Court has explained in its Establishment Clause 

cases, when the government provides funds or other 

benefits to individuals who independently choose to 

contribute them to or use them in connection with

religious institutions, those individuals’ decisions are 

neither attributable to the government nor deemed 

official support of religion. See, e.g., Zelman v. 

Simmons-Harris, 536 U.S. 639, 655 (2002) (rejecting 

argument that “a neutral program of private choice, 

where state aid reaches religious schools solely as a 

result of the numerous independent decisions of 

private individuals, carries with it an imprimatur of 

government endorsement”); Witters v. Wash. Dep’t of 

Servs. for Blind, 474 U.S. 481, 488 (1986) (“[a]ny aid 

... that ultimately flows to religious institutions does 

so only as a result of the genuinely independent and 

private choices of aid recipients”). 

Just as the link between the government and a 

religious institution is severed by the independent 

choices of intermediaries, here, “[t]he candidatefunding circuit is broken,” Bennett, 131 S. Ct. at 

2826. There is no prearrangement or coordination 
13

between the “ultimate” recipient and the “original” 

contributor when the “intermediary” committee 

makes an independent determination as to what to 

do with the contribution. Indeed, the argument is 

even stronger here because the recipient of an 

unearmarked contribution is not only presumed but 

legally required to decide how to spend a contribution 

independent from the contributor’s direction or 

control. 2 U.S.C. § 441a(a)(8). Because there is no 

constitutionally cognizable risk of quid pro quo

corruption when the contributor has lost all control 

over the funds, there is no important or even 

legitimate interest in prohibiting the contribution. 

The government seems to recognize this, as it, 

too, ultimately concedes that the recipient of a 

contribution has “considerable discretion” in deciding 

what to do with the funds. FEC Br. 37. It is little 

surprise, then, that most of the circumvention 

scenarios it hypothesizes involve the kind of 

coordination or prearrangement that is already 

precluded by laws restricting coordinated 

expenditures, earmarking, contributions in the name 

of another, and the like. See FEC Br. 37-38 

(suggesting a party might use a contribution to make 

coordinated expenditures on a candidate’s behalf); 

FEC Br. 41-42 (analogizing to laws that preclude 

attempts to bribe federal employees by instructing

third parties to pass along otherwise impermissible 

gifts). The government’s attempt to analogize 

political contributions to efforts to bribe federal 

employees—an activity that is decidedly not entitled 

to First Amendment protection—only underscores 

the extent to which it trivializes the constitutional 

interests at stake. 
14

Beyond that, the government invokes scenarios 

where not only is coordination or prearrangement

lacking, but the amount of the contribution that 

theoretically might be “credited” to a particular 

contributor is so minimal as to be non-cognizable. 

Taking contributions to national party committees as 

an example, the RNC raised more than $386 million 

during the 2012 election. McCutcheon Opening Br.

51. Even if someone contributed the maximum to the 

RNC ($32,400), and the RNC in turn contributed the 

maximum to a candidate ($5,000), the pro rata share 

of that contribution for which the candidate could 

“credit” the “original” contributor would be less than 

one hundredth of one percent, amounting—quite 

literally—to pocket change. 

The government’s own examples confirm that 

contributions to state parties are no different. The 

government notes that the Democratic Party of New 

Mexico spent $210,000—96% of its coordinated 

expenditures—on behalf of one candidate in 2012. 

FEC Br. 45. But it conveniently omits the fact that 

the party received approximately $2.8 million in its 

federal account during that election cycle, meaning 

the pro rata share of its coordinated expenditures 

attributable to any one contributor was miniscule.

The $334,604 the Missouri Democratic State 

Committee spent on coordinated expenditures was an 

even smaller percentage of its overall federal 

receipts.1 Thus, even the government’s cherry-picked 

 1 See Democratic Party of N.M., Report of Receipts and 

Disbursements 3 (Apr. 8, 2013), http://images.nictusa.com/pdf/

488/13961253488/13961253488.pdf; Missouri Democratic State 
15

examples do not advance its circumvention 

argument.

The same ultimate attribution problem is true as 

to multicandidate PACs, which receive the lion’s 

share of contributions made by individuals to PACs. 

These entities must be funded by 50 or more 

individuals, must contribute to five or more 

candidates, and may not contribute more than $5,000 

to any candidate. 2 U.S.C. § 441a(a)(2), (4). As the 

number of contributors to a multicandidate PAC or 

the number of candidates the PAC supports grows, 

the pro rata share of the PAC’s contribution to a 

candidate that might be attributed to any particular 

contributor becomes increasingly negligible 

(assuming the candidate even knows who contributed 

to the PAC in the first place). That hardly has the 

makings of the kind of quid pro quo corruption with 

which this Court’s cases are concerned.

In sum, the government’s attempts to defend 

BCRA’s aggregate limits on anti-circumvention 

grounds cannot withstand close scrutiny, as the 

circumvention concerns it suggests are unfounded. 

Unless campaign finance regulation is to devolve into 

the sort of prophylaxis-upon-prophylaxis—upon even 

more prophylaxis yet—that this Court has already 

declared impermissible, cf. WRTL II, 551 U.S. at 479, 

there must be some end to the government’s ability to 

continue recycling the same generic corruption 

interests to justify ever more burdensome restrictions 

on core First Amendment activity. 

 

Comm., Report of Receipts and Disbursements 3 (May 13, 2013), 

http://images.nictusa.com/pdf/727/13962195727/13962195727.pdf.
16

B. Buckley Does Not Relieve the 

Government of Its Burden of 

Establishing that BCRA’s Aggregate 

Limits Are Constitutional.

Implicitly recognizing the myriad shortcomings 

of its efforts to establish that BCRA’s aggregate 

limits are constitutional on their own terms, the 

government spends the bulk of its brief attempting to 

relieve itself of that burden by insisting that Buckley 

already resolved this case in its favor. Buckley did no 

such thing. Buckley upheld a specific aggregate 

contribution ceiling in a very different campaign 

finance scheme at a very different moment in this 

Court’s jurisprudence. The government’s attempt to 

convert Buckley’s single-paragraph discussion of that 

distinct provision into some sort of blanket immunity 

against challenges to aggregate limits both misreads 

Buckley and ignores critical changes to campaign 

finance law and jurisprudence in the past four 

decades. 

After emphasizing that the issue “was not 

addressed at length by the parties,” Buckley

explained its rationale for upholding FECA’s 

aggregate contribution ceiling in a single sentence: 

[T]his quite modest restraint upon protected 

political activity serves to prevent evasion of 

the $1,000 contribution limitation by a 

person who might otherwise contribute 

massive amounts of money to a particular 

candidate through the use of unearmarked 

contributions to political committees likely 

to contribute to that candidate, or huge 
17

contributions to the candidate’s political 

party.

Buckley, 424 U.S. at 38. While the Court addressed 

this issue at even less length than the parties, this 

sentence suggests it was concerned with the 

possibility that someone might contribute “massive 

amounts” to a political party or committee that was 

“likely” to funnel those amounts back to a “particular 

candidate.” 

As McCutcheon explained in his opening brief (at 

40-43), whatever validity these concerns might have 

had under FECA, they are inapplicable to BCRA. 

Unlike FECA, BCRA imposes base limits not only on 

contributions to candidate committees, but also on 

contributions to party committees and PACs. 2 

U.S.C. § 441a(a)(1)(B)-(C). It thus is simply no longer 

the case, as it was under FECA, that someone may

make unlimited contributions to party committees 

and PACs.2 Nor may someone circumvent BCRA’s

base limits by contributing to multiple PACs created 

or controlled by a single entity, as BCRA treats all 

such PACs as a single committee. Id. § 441a(a)(5).

Because Congress has foreclosed these “massive” 

contribution avenues directly, the government may 

no longer justify aggregate limits as a surrogate base 

limit on contributions to party committees and PACs. 

The government attempts to downplay this 

distinction between FECA and BCRA, FEC Br. 47, 

 2 Post-Buckley amendments also added base limits—which 

FECA originally lacked—on how much a PAC may contribute to 

another PAC or a local, state, or national political party. 2 

U.S.C. § 441a(a)(2). 
18

but its importance cannot be overstated. The core 

concern this Court has identified in upholding base 

contribution limits is the possibility that “large 

campaign contributions” might create “the actuality 

and potential for corruption.” Buckley, 424 U.S. at 28 

(emphasis added); see also Citizens Against Rent 

Control, 454 U.S. at 296-97 (noting that “large 

contributors to a candidate” can create actuality or 

appearance of corruption (first emphasis added)). It 

is understandable that the Court deemed an 

aggregate contribution ceiling permissible in a 

regulatory scheme that imposed no limits on 

contributions to political parties or committees. But 

neither Buckley nor any other decision of this Court 

has suggested Congress may impose aggregate limits 

on top of a full complement of base limits—let alone 

on top of myriad other anti-circumvention measures 

as well. Thus, Appellants do not seek to limit 

Buckley; rather, the government seeks to extend it.3 

That is nowhere more apparent than in its 

repeated insistence that aggregate limits are needed 

to prevent someone from contributing a total of 

 3 Although the government notes that FECA contained a few 

of BCRA’s restrictions, Buckley did not discuss or rely on those 

measures when assessing the constitutionality of FECA’s 

aggregate ceiling. The Buckley Court thus may well have 

overlooked the importance of FECA’s earmarking provisions or, 

as more recent cases have suggested, overestimated the 

potential for unearmarked contributions to be used as 

mechanisms for circumvention. While there is no need to revisit 

the constitutionality of FECA’s long-since repealed provision, 

this Court certainly need not extend Buckley’s reasoning to 

entirely distinct aggregate limits imposed as part of a very 

different campaign finance scheme. 
19

millions of dollars to all national, state, and local 

parties combined, thereby “acquir[ing] actual or 

perceived ‘improper influence,’ ... regardless of how 

the money is spent.” FEC Br. 40 (quoting Buckley, 

424 U.S. at 27; emphasis added). First, that is not 

the kind of “massive” contributing with which 

Buckley was concerned. The anti-corruption concern 

Buckley identified was the possibility that someone 

might use “massive” contributions to committees to 

circumvent base limits on candidate contributions, 

not that a collection of modest, non-corrupting

contributions might, when aggregated together,

create the appearance of disproportionate influence 

or access, wholly apart from circumvention concerns. 

Indeed, Buckley could not have more clearly rejected

the notion that Congress may seek to “equaliz[e] the 

relative ability of individuals and groups to influence 

the outcome of elections,” Buckley, 424 U.S. at 48-

49—a principle this Court has since reiterated, see, 

e.g., Bennett, 131 S. Ct. at 2821 (“restrict[ing] the 

speech of some elements of our society in order to 

enhance the relative voice of others ... is wholly

foreign to the First Amendment”).

Subsequent decisions likewise have rejected the 

“‘generic favoritism or influence theory’” of corruption

the government continues to espouse, condemning it

as “‘unbounded and susceptible to no limiting 

principle.’” Citizens United v. FEC, 558 U.S. 310, 359

(2010) (quoting McConnell, 540 U.S. at 296 (opinion 

of Kennedy, J.)). That a single contributor may have 

a disproportionately large impact on numerous races, 

garner potential influence over multiple candidates, 

or perhaps even earn their generalized gratitude is 

simply not a permissible basis for preventing him 
20

from robustly exercising his First Amendment rights. 

“Ingratiation and access ... are not corruption,” id. at 

360, and the government may not invoke them to 

attach special burdens to the vigorous exercise of 

First Amendment rights. 

The government’s subtle resort to the same 

“equalization” and “undue influence” theories this 

Court already has rejected ultimately underscores 

the basic problem with its arguments. The 

government has no answer to the reality that 

subsequent developments in campaign finance law 

and jurisprudence preclude it from relying on the 

circumvention concerns articulated in Buckley. Just 

like base contribution limits, see Randall, 548 U.S. 

230, each aggregate contribution limit must be 

justified on its own terms. The government cannot 

establish the constitutionality of BCRA’s aggregate 

limits by mechanically pointing to Buckley’s analysis 

of a very different legal provision in a very different 

legal regime. Because the government has failed to 

demonstrate that BCRA’s aggregate limits further 

any cognizable anti-corruption interest, the limits

cannot survive heightened constitutional scrutiny.

III. EVEN IF BCRA’S AGGREGATE LIMITS 

SERVE AN IMPORTANT INTEREST, THEY 

ARE NOT REMOTELY ADEQUATELY 

TAILORED.

In all events, even assuming BCRA’s aggregate 

limits further anti-circumvention interests rather 

than impermissible “equalization” or “undue 

influence” goals, they are a drastically overbroad 

means of doing so. At a minimum, aggregate limits 

must be “‘closely drawn to avoid unnecessary 
21

abridgement of associational freedoms.’” FEC Br. 18 

(quoting Buckley, 424 U.S. at 25). BCRA’s aggregate 

limits do not come close to satisfying that “exacting”

standard, Citizens Against Rent Control, 454 U.S. at 

298.

At the outset, even indulging the government’s 

dubious assumption that allowing individuals to 

make contributions within base limits to more 

candidates, political parties, or PACs might raise 

circumvention concerns in some instances, the 

government has provided no evidence that the 

number of instances in which it would do so is 

significant. Instead, it mentions only a handful of 

newspaper articles and a press release about entirely 

inapposite corruption and circumvention incidents. 

FEC Br. 53-54. The government does not even try to 

show that aggregate limits would have done anything 

to prevent these already illegal activities; indeed, it 

appears that each of the transactions the government 

identifies was within aggregate limits (but prohibited 

by bribery and/or earmarking laws). Beyond that, 

the government offers only unsubstantiated 

speculation, but this Court has “never accepted mere 

conjecture as adequate to carry a First Amendment 

burden.” Nixon v. Shrink Missouri Gov’t PAC, 528 

U.S. 377, 392 (2000). Thus, not only is the kind of 

illegal conduct the government identifies unaffected 

by aggregate limits, but aggregate limits prohibit far 

more contributions than there is any reason to 

suspect raise circumvention concerns under this 

Court’s precedents. 

Rather than attempt to demonstrate otherwise, 

the government points to Buckley’s rejection of an 
22

overbreadth challenge to base contribution limits.

FEC Br. 52. Once again, that ignores fundamental 

differences between limits on how much someone 

may contribute to each candidate and limits on how 

many candidates someone may support. 

Contributing $250,000 to one candidate is far 

different, and raises far different actual or apparent 

corruption concerns under this Court’s precedents, 

than dividing the same amount among 100 different 

candidates. 

In any event, a sweeping, maladroit prohibition 

on all contributions over a certain aggregate total—

regardless of whether the recipients transfer those 

funds to another candidate, party, or PAC—is not an 

adequately tailored solution to any circumvention 

concern the government has identified. That 

Congress is regulating contributions does not change 

the fact that “the argument that protected speech 

may be banned as a means to ban unprotected speech 

... turns the First Amendment upside down.” WRTL 

II, 551 U.S. at 475. Here, Congress clearly could 

achieve its asserted anti-circumvention goals through 

much more direct means that would abridge far less

First Amendment activity. 

For example, Congress could require aggregate 

contributions above a threshold to be deposited into a 

special account that may not be transferred or recontributed to other candidates or committees. Or it

could prohibit contributions above an aggregate 

threshold only when made to a candidate committee 

or political committee that has expressed its intent to 

contribute to a recipient as to whom the potential 

contributor has reached her base limit. Congress 
23

also could impose limits on a candidate’s ability to 

solicit contributions to other candidates, party 

committees, or PACs from someone who has already 

reached her base limit on contributions to the 

soliciting candidate. Congress likewise could address 

the government’s professed anti-circumvention 

concerns about political parties or JFCs through less 

restrictive means. For example, as to political 

parties, Congress could treat transfers from 

candidates to party committees, or between party 

committees, as ordinary contributions subject to base 

limits. And as to JFCs, Congress could limit how 

many entities may join a JFC, require funds received 

through a JFC to be spent by the recipient rather 

than transferred to another JFC participant or other 

committee, or treat transfers by or among 

participants in JFCs as ordinary contributions 

subject to base limits.4 

 4 The government’s concerns about JFCs are largely 

ephemeral. A JFC is simply a convenient vehicle that allows 

multiple candidates or political parties to fundraise together 

and enables contributors to contribute to multiple entities by 

writing a single check. 2 U.S.C. § 432(e)(3)(A)(ii); 11 C.F.R. 

§ 102.17. Base limits cannot be avoided by contributing through 

a JFC. 11 C.F.R. § 102.17(c)(1). Candidate committees or 

political committees that form a JFC must agree on the 

percentage of each contribution that each participating entity 

will receive, id. § 102.17(c)(1), and no entity may accept 

contributions that exceed base limits, id. § 102.17(c)(3)(i), 

(c)(6)(i). Thus, when someone contributes to a JFC, the legal 

effect is no different than if she had written separate checks for 

a pro rata share of that contribution to each of the entities that 

comprise the JFC. The notion that all the participants in a JFC 

might independently and without earmarking choose to 

contribute all their contributions to a single recipient is 

conceptually dubious and empirically unsupported.
24

McCutcheon identified many of these less 

restrictive alternatives in his opening brief (at 60-61), 

but the government tellingly offers no response. 

Instead, it attempts to change the subject, insisting 

that aggregate limits are needed to prevent

individuals from contributing to every member of the 

same congressional committee. FEC Br. 53. Rather 

than bolster the government’s case, this argument 

only underscores the basic problem with aggregate 

limits. There would be nothing inherently suspect 

should an individual wish to make contributions 

within base limits to every member of a particular 

committee—a staunch education advocate, for 

example, might wish to support each member of the 

House Education and the Workforce Committee 

based on their support of critical education reforms. 

Congress’s structure and procedures ensure that an 

individual’s freedom, pecuniary interests, and 

political interests are directly affected by numerous 

members of Congress. See William N. Eskridge, Jr., 

Vetogates, Chevron, Preemption, 83 Notre Dame L. 

Rev. 1441, 1444-48 (2008). Someone who supports 

the enactment or repeal of a particular law or policy 

thus has a distinct interest in supporting each 

member of Congress who is in a position to promote 

that goal. 

Moreover, every voter is directly and 

substantially affected by which political party 

controls each legislative chamber, which typically 

turns on races occurring all over the country. See 

Samuel Issacharoff & Pamela S. Karlan, Where to 

Draw the Line?: Judicial Review of Political 

Gerrymanders, 153 U. Pa. L. Rev. 541, 570-74 (2004). 

The enactment, amendment, or repeal of laws that 
25

directly affect someone’s freedom and well-being in 

areas such as health care, taxes, immigration, the 

economy, and environmental regulation, often 

depends on the outcome of those races. Individuals 

therefore have a substantial interest in associating 

with and expressing support for candidates in races 

throughout the country. That BCRA’s aggregate 

limits prevent them from doing so is not a virtue but 

a vice.

Finally, experience contradicts the government’s 

contention that aggregate limits are needed to 

prevent circumvention of base limits. Over 70% of 

states that limit contributions to candidates have 

concluded that aggregate limits are unnecessary. See 

McCutcheon Opening Br. 53-54 & n.21. The 

government has not introduced a shred of evidence 

that the absence of such limits has led to 

impermissible circumvention or actual or apparent 

corruption in those states. The relative scarcity of 

aggregate limits in state campaign finance schemes, 

coupled with the lack of evidence that the absence of 

such limits has fostered corruption, undermines any 

claim that aggregate limits are a closely drawn 

means of addressing circumvention concerns. 

Instead, BCRA’s aggregate limits are superfluous 

prophylaxis-upon-prophylaxis and abridge far more 

First Amendment activity than the Constitution 

permits. 
26

CONCLUSION

For these reasons, the Court should reverse and 

remand for entry of a permanent injunction.

Respectfully submitted,

Erin E. Murphy

BANCROFT PLLC

1919 M Street, NW

Suite 470

Washington, DC 20036

Dan Backer

Paul Henry Jossey

DB CAPITOL 

STRATEGIES, PLLC

717 King Street

Suite 300

Alexandria, VA 22314

Michael T. Morley

Counsel of Record

223 Pawnee Road

Cranford, NJ 07016

(860) 778-3883

michaelmorleyesq

@hotmail.com

Jerad Wayne Najvar

NAJVAR LAW FIRM

1 Greenway Plaza

Suite 100 

Houston, TX 77046

Counsel for Plaintiff-Appellant Shaun McCutcheon

August 19, 2013