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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

BRIEF AMICI CURIAE OF THE NATIONAL

EDUCATION ASSOCIATION, ET AL.,

IN SUPPORT OF APPELLEE

WILLIAM LURYE

JESSICA ROBINSON

American Federation of State,

County and Municipal

Employees

1625 L Street, N.W.

Washington, DC 20036

(202) 429-1293

JUDITH A. SCOTT

MARK SCHNEIDER

Service Employees

International Union

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 730-7000

ALICE O’BRIEN

(Counsel of Record)

JASON WALTA

LISA POWELL

NICHOLAS MUELLER

National Education Association

1201 16th Street, N.W.

Washington, DC 20036

(202) 822-7035

LYNN K. RHINEHART

CRAIG BECKER

LAURENCE E. GOLD

American Federation of

Labor-Congress of Industrial

Organizations

815 16th Street, N.W.

Washington, DC 20036

(202) 637-5310

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE...................... 1

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

ARGUMENT....................................................... 4

A. Aggregate Contribution Limits Must

Be Reviewed Deferentially Under

“Closely Drawn” Scrutiny ...................... 5

B. FECA’s Aggregate Limits Do Not

Significantly Interfere with Expressive

or Associational Rights .......................... 8

C. FECA’s Aggregate Contribution Limits

Serve an Essential Function of

Combating Corruption and the

Public Perception of Corruption .......... 14

CONCLUSION ................................................... 22
ii

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

Cal. Med. Assoc. v. FEC, 453 U.S. 182 (1981).. 12

Citizens United v. FEC, 558 U.S. 310 (2010)... 5, 14, 20

FEC v. Colo. Republican Fed. Campaign

Comm., 533 U.S. 431 (2001)................ 15, 16, 18, 19

FEC v. Nat’l Right to Work Comm.,

459 U.S. 197 (1982)........................................ 19

McConnell v. FEC, 540 U.S. 93 (2003),

overruled in part on other grounds by

Citizens United v. FEC, 558 U.S. 310

(2010).............................................................. passim

Nixon v. Shrink Mo. Gov’t PAC,

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

STATUTES AND REGULATIONS

2 U.S.C. § 441a(d).............................................. 16

29 U.S.C. § 206(a)(1)(C)................................... 10

11 C.F.R. § 102.6(a)(1)(ii)................................. 16

11 C.F.R. § 102.17 .............................................. 16

11 C.F.R. § 102.17(c)(1).................................... 16

11 C.F.R. § 113(c) .............................................. 16

MISCELLANEOUS

Abby Blass, Brian Roberts, Daron Shaw,

Corruption, Political Participation, and

Appetite for Reform: Americans’

Assessment of the Role of Money in

Politics, 11 Election L. J. 380 (2012) .......... 21

TABLE OF AUTHORITIES

CASES Page
iii

Bureau of Labor Statistics, National

Occupational Employment & Wage

Estimates United States, May 2012,

available at http://www.bls.gov/oes/

current/oes_nat.htm...................................... 10

Center for Responsive Politics, available at

http://www.opensecrets.org/bigpicture/

donordemographics.php?cycle=2012 ......... 11

FEC Two-Year Summary, Total Contributions

for the DNC, DSCC, DCCC, RNC, NRSC,

NRCC, Barack Obama, and Mitt Romney,

available at http://www.fec.gov/finance/

disclosure/candcmte_info.shtml ................. 13

Jason Cohen, The Same Side of Two Coins:

The Peculiar Phenomenon of Bet-Hedging

in Campaign Finance, 26 N. Ill. U. L. Rev.

271 (2006)........................................................... 7

Jesse Bricker, et al., Changes in Family

Finances from 2007 to 2010: Evidence

from the Survey of Consumer Finances,

Federal Reserve Bulletin, Vol. 98, No. 2,

June 2012, available at http://www.

federalreserve.gov/pubs/bulletin/2012/

pdf/scf12.pdf................................................... 9

Kevin Bogardus, Lobbyists Fear Shakedown

if Supreme Court Lifts Campaign

Contributions Cap, The Hill, Feb. 26, 2013,

available at http://thehill.com/business-alobbying/284817-lobbyists-fear-shakedownif-court-lifts-campaign-cap............................... 22

TABLE OF AUTHORITIES—Continued

Page
iv

NEA 2011-2012 Average Starting Teacher

Salaries by State, available at http://www.

nea.org/home/2011-2012-average-startingteacher-salary.html ........................................ 10

U.S. Census Bureau, Selected Economic

Characteristics: 2011 American Community

Survey 1-Year Estimates, available at http://

factfinder2.census.gov/faces/tableservices/

jsf/pages/productview.xhtml?pid=ACS_11_

1YR_DP03&prodType=table ........................... 10

TABLE OF AUTHORITIES—Continued

Page
(1)

1

INTEREST OF AMICI CURIAE

This brief amici curiae is submitted, with the consent of the parties,

1 on behalf of the National

Education Association (NEA); American Federation

of Labor-Congress of Industrial Organizations (AFLCIO); Service Employees International Union

(SEIU); and American Federation of State, County,

and Municipal Employees (AFSCME).

NEA is a nationwide employee organization with

approximately three million members, the vast

majority of whom are educators and education support professionals in our nation’s public schools, colleges, and universities. AFL-CIO is a federation of 56

national and international labor organizations with a

total membership of approximately 12 million working men and women. SEIU is one of the largest

unions in North America; it represents over 2.1 million workers in service industries throughout the

United States and Canada. AFSCME is a labor organization with 1.6 million members in hundreds of

occupations who provide vital public services in 46

states, the District of Columbia, and Puerto Rico.

NEA, AFL-CIO, SEIU, AFSCME, and the millions of

workers they represent have a substantial interest in

the outcome of this litigation because they are deeply

concerned with ensuring a system of fair elections

and clean government. Furthermore, NEA, AFL-CIO,

SEIU, and AFSCME all sponsor federal political

1

Letters of consent are on file with the Clerk. No counsel for

a party authored this brief in whole or in part, and no person

or entity other than amici curiae made a monetary contribution to the preparation or submission of the brief.
action committees (PACs) that receive individual

contributions subject to the aggregate limits at issue

in this case. That being the case, amici have developed substantial expertise with the applicable laws

and constitutional principles.

SUMMARY OF ARGUMENT

Understanding that the integrity of our system of

representative democracy is paramount, Congress

has sought to combat both actual and perceived

corruption of federal candidates and officeholders

by placing limits on campaign contributions in federal elections, including limits on the aggregate

amounts individuals may give over the course of an

election cycle. This Court has properly deferred to

Congress when it acts in this capacity, upholding

contributions limits so long as they allow candidates

and parties to amass sufficient funds for effective

electoral advocacy.

The Appellants now invite this Court to abandon

that deferential approach and apply an unreasonably

demanding level of scrutiny that, on Appellants’ view,

results in the demise of the current—or any future—

aggregate contribution limits. This Court should

decline the Appellants’ invitation, adhere to its existing

precedent, and uphold the current aggregate limits.

Aggregate contribution limits impose only a marginal constraint on an individual’s First Amendment

rights. They do not meaningfully interfere with an

individual’s ability to express symbolic support for

candidates or parties by making contributions. Nor

do they restrain individuals in their ability to associate with candidates or parties, as individuals may

2

(2)
join parties or personally volunteer their services for

candidates. That being the case, aggregate limits are

subject to a deferential standard of review and survive as long as they are closely drawn to serve an

important government purpose.

The existing federal aggregate limits easily satisfy

this standard. The current limits—$48,600 to federal

candidates and $74,600 to non-candidate committees

and party committees, for a total of $123,200 each twoyear election cycle—are so generous that they cannot

be construed as significantly interfering with any

expressive or associational rights that are implicated

by contributions to a range of different candidates, parties, or committees. The large amount of money

involved, the fact that the limits are indexed to inflation, and the small number of donors who even now

approach the aggregate limits in a given election cycle

all help to demonstrate that they do not impose a particularly restrictive condition on speech or association.

Finally, the aggregate limits are justified by the

compelling interest in combatting both the reality

and appearance of corruption arising from large campaign contributions. In the absence of an aggregate

limit, the base limits on direct contributions to a

given candidate could be easily circumvented.

Likewise, the aggregate limits prevent the appearance of corruption that may arise when candidates

and officeholders exert pressure on contributors

with the implied threat to withdraw access if the contributors fail to deliver. Without prophylactic protections against the reality and appearance of corruption, voters could well decide that “the fix is in,”

which in turn would jeopardize their willingness to

3
4

take part in the democratic process on which our

system of governance rests.

ARGUMENT

At the urging of the American public, Congress has

long been concerned with, and sought to mitigate,

the “pernicious influence of large campaign contributions.” McConnell v. FEC, 540 U.S. 93, 115-19 (2003)

(discussing the development of campaign finance

laws), overruled in part on other grounds by

Citizens United v. FEC, 558 U.S. 310 (2010). To that

end, the Federal Election Campaign Act of 1971

(FECA), as amended, imposes limits on individuals’

political contributions—both on what can be given to

a single candidate, party committee, or PAC and on

what can be given in aggregate. This case presents a

constitutional challenge to the aggregate limits on

contributions, a version of which this Court upheld in

Buckley v. Valeo, 424 U.S. 1, 21-22 (1976) (per curiam).

These limits are a straightforward means of

addressing the “threat from politicians too compliant

with the wishes of large contributors” and combatting “the cynical”—but frequently justified—

“assumption that large donors call the tune.” Nixon

v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389-90 (2000).

The means that Congress chose in service of this goal

are modest: placing biennial aggregate contribution

limits alongside the per-recipient (or “base”) limits

on contributions to candidates, political parties, and

PACs, and doing so at amounts so high that few

Americans could even imagine exceeding them.

As we will show, the Appellants’ quest to strike
down FECA’s aggregate limits must fail. Because these

contribution limits impose only a marginal constraint

on an individual’s First Amendment rights, they are

subject to a deferential standard of review. Moreover,

the aggregate limits satisfy this standard because they

do not significantly interfere with the symbolic expression or associational interests implicated by contributions to different candidates, parties, or PACs. Finally,

the aggregate limits are justified by the compelling

interest in combatting both the reality and appearance

of a “sense of obligation” arising from large campaign

contributions. McConnell, 540 U.S. at 144.

A. Aggregate Contribution Limits Must Be

Reviewed Deferentially Under “Closely

Drawn” Scrutiny

Ever since this Court’s seminal decision in

Buckley, a key distinction has animated the First

Amendment analysis of all campaign-finance regulations. That distinction is between expenditures, on

the one hand, that directly fund campaign-related

speech and contributions, on the other hand, that

simply fund the expression of others. As the Buckley

Court explained, expenditure limits “represent substantial rather than merely theoretical restraints on

the quantity and diversity of political speech,” while

contribution limits “entail[] only a marginal restriction upon the contributor’s ability to engage in free

communication.” 424 U.S. at 19, 20. Accordingly, this

Court has held that an expenditure limit is subject to

“strict scrutiny, which requires the Government to

prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”

Citizens United, 558 U.S. at 340 (citations and quota5
tion marks omitted). But a contribution limit—even

one “involving [a] significant interference with associational rights”—“is nevertheless valid if it satisfies

the lesser demand of being closely drawn to match a

sufficiently important interest.” McConnell, 540 U.S.

at 136 (citations and quotation marks omitted).

Faced with this precedent—including Buckley’s

explicit rejection of a First Amendment challenge to

FECA’s then-existing aggregate limits—the

Appellants and their supporting amici have called

for this Court either to overrule Buckley, eliminate

the distinction between contributions and expenditures, and apply strict scrutiny to both; or to apply to

contribution restrictions a version of “closely drawn”

scrutiny that is for all practical purposes indistinguishable from strict scrutiny. This Court should

reject both of those entreaties. The distinction

between contributions and expenditures is both conceptually sound and constitutionally significant, and

this Court should continue to adhere to it, as it did

when analyzing the aggregate limits in Buckley.

The rationale for less rigorous scrutiny is in fact at

its strongest as it applies to aggregate limits

because—even more than base limits on individual

contributions to particular candidates, parties, or

committees—they “le[ave] communication significantly unimpaired.” Shrink Missouri, 528 U.S. at 378.

After all, contributions to a particular candidate

implicate the First Amendment because they at least

serve “as a general expression of support for the candidate and his views,” albeit without “communicat[ing] the underlying basis for the support.”

Buckley, 424 U.S. at 21; see also Shrink Missouri,

6
528 U.S. at 386 (“The quantity of communication by

the contributor does not increase perceptibly with

the size of his contribution, since the expression

rests solely on the undifferentiated symbolic act of

contributing.”). The communicative value of such

contributions “inheres . . . in their ability to facilitate

the speech of their recipients,” which is why this

Court has held that contribution limits will impose an

undue burdens on free speech “if they are so low as

to preven[t] candidates and political committees

from amassing the resources necessary for effective

advocacy.” McConnell, 540 U.S. at 135 (alteration in

original, citation and quotation marks omitted).

Yet, so long as the underlying base contributions

limits satisfy this standard (something the Appellants

do not dispute), an aggregate limit generally will not

impose additional burdens of any consequence on

First Amendment expression or association. First, any

burden on the expressive content of multiple campaign

contributions is quite limited. Campaign contributors

may decide to support multiple candidates for myriad

reasons or may even contribute to competing candidates in an election.

2 The mere fact that an individual

might seek to make multiple contributions beyond the

limits set in the law does not raise a genuine First

Amendment concern. Indeed, compared to a contribution to a single candidate, party, or PAC—which at

least has the virtue of giving a “very rough index of

the intensity of the contributor’s support,” Buckley, 424

U.S. at 21—the communicative value inherent in

7

2

See, e.g., Jason Cohen, The Same Side of Two Coins: The

Peculiar Phenomenon of Bet-Hedging in Campaign Finance,

26 N. Ill. U. L. Rev. 271, 288-89 (2006).
8

a combination of many contributions is far more generic, diffuse, and undifferentiated.

Second, as long as individuals can contribute at

least some meaningful amount to all of their desired

candidates and parties, and those entities can in turn

amass adequate resources for effective advocacy, the

aggregate limits impose no additional burden on the

contributor’s associational freedoms. The limits

leave an individual “free to become a member of any

political association and to assist personally in the

association’s efforts on behalf of candidates, and

allow associations to aggregate large sums of money

to promote effective advocacy.” McConnell, 540 U.S.

at 136 (citations and quotation marks omitted). Thus,

the “overall effect” of the aggregate limits—particularly when paired with the base limits—is “merely to

require candidates and political committees to raise

funds from a greater number of persons.” Id. (citations and quotation marks omitted).

These observations generally would hold true for

any aggregate limit that allows a wide array of contributions to be made within a set of base contribution

limits. But they have particularly strong application to

FECA’s aggregate limits being challenged here. As we

will show, the current limits are so generous that they

cannot be construed as significantly interfering with

any expressive or associational rights. Moreover, these

limits are justified by the compelling need to protect

the integrity of the election process.

B. FECA’s Aggregate Limits Do Not Significantly

Interfere with Expressive or Associational Rights

The base and aggregate limits work in tandem to
prevent one individual from giving large amounts of

money that would have a potentially corrupting influence on a candidate or party. The current aggregate

limits, which are adjusted for inflation, allow individual contributors to give up to $48,600 to federal candidates, and to give up to $74,600 to non-candidate

PACs and party committees, for a total of $123,200

each two-year election cycle. These limits are high

enough that they do not involve a “significant interference” with expressive or associational rights.

Shrink Missouri, 528 U.S. at 387 (citation and quotation marks omitted).

The overall $123,200 limit allows ample opportunities for contributions to any number of candidates,

while mitigating the risk that a large donor will be

able to buy improper influence, or the public will perceive democracy to be undermined by the improper

influence of large donors. To put the aggregate limit

in context, it far exceeds the entire net worth of well

over half of American families (not just individuals),

who in any event have much of their wealth invested

in illiquid assets like housing.

3 By like token, the limit

is approximately equal to what someone would earn

if they worked at the minimum wage for every single

9

3

In 2010, the median net worth of American families was

approximately $77,300. See Jesse Bricker, et al., Changes in

Family Finances from 2007 to 2010: Evidence from the

Survey of Consumer Finances, Federal Reserve Bulletin, Vol.

98, No. 2 at 16-25, June 2012, available at http://www.federal

reserve.gov/pubs/bulletin/2012/pdf/scf12.pdf. The mean net

worth of American families in 2010 was approximately

$498,800, a figure strongly skewed by the massive accumulation of assets at the upper reaches of the wealth scale. Id.
10

hour and day of an election cycle. More specifically,

a worker earning the federal minimum wage of

$7.25 per hour, see 29 U.S.C. § 206(a)(1)(C), would

need to work more than 23 and a quarter hours per

day every day for the entire two-year election cycle

to earn an amount equal to the aggregate contribution limit.

Viewed through yet another lens, the aggregate

limit is more than 4.6 times the per capita income in

the United States; over the two-year election cycle,

an individual paid this amount would earn less than

44 percent of the aggregate limit.

4 The cap is nearly

double the $67,930 average annual salary of a registered nurse,

5 nearly three-and-a-half times the

$35,672 average starting salary of a teacher,

6 and

nearly five times the $24,850 average annual salary of

a janitor.

7 An entire U.S. household pooling its

resources is unlikely to earn as much of the aggregate cap over two years. The cap is more than 2.4

4

According to U.S. Census Bureau data, the per capita

income in the United States was $26,708 in 2011. See U.S.

Census Bureau, Selected Economic Characteristics: 2011

American Community Survey 1-Year Estimates, available at

http://factfinder2.census.gov/faces/tableservices/jsf/pages/pro

ductview.xhtml?pid=ACS_11_1YR_DP03&prodType=table.

5

See Bureau of Labor Statistics, National Occupational Employment & Wage Estimates United States, May 2012, available at http://www.bls.gov/oes/current/oes_nat.htm.

6

See NEA 2011-2012 Average Starting Teacher Salaries by

State, available at http://www.nea.org/home/2011-2012-average-starting-teacher-salary.html.

7

See National Occupational Employment & Wage

Estimates, supra note 5.
times the median annual household income in the

United States; over the two-year election cycle the

median household earns approximately 80 percent of

the aggregate limit.

8 And, all of this, of course, does

not take into account living expenses and taxes that

greatly reduce the amount of money individuals have

available to contribute to political campaigns.

Given that so few Americans can give this amount

of money, it is not surprising only a tiny fraction of the

populace—only 1,877 individuals, or approximately

0.0006 percent of the population—came within even

$22,000 of contributing the combined $117,000 aggregate limit that applied during the 2011-2012 election

cycle.

9 To be sure, the First Amendment does not permit laws that violate even one person’s constitutional

rights, but the salient point is that the small number of

donors who even approached the aggregate limit helps

to demonstrate that it is not a particularly restrictive

condition. On the contrary, it is a huge amount of

money, more than most Americans could ever dream

of donating to political campaigns.

Moreover, the generous aggregate limits leave an

individual free to associate with as many candidates

and political committees as she wishes. Appellant

McCutcheon argues that the aggregate limitations

are “far more invasive than base contribution limits”

11

8

According to U.S. Census Bureau data, the national median

for household income in 2011 was $50,502. See supra, note 4.

9

According to the Center for Responsive Politics, only 1,877

individuals gave more than $95,000 during the election cycle

(the largest category of data provided). See http://www.open

secrets.org/bigpicture/donordemographics.php?cycle=2012.
because they “operate to prevent an individual from

associating with, expressing support for, and assisting ‘too many’ candidates, political party committees,

or PACs in a single election.” See McCutcheon Br. at

17. This is untrue.

First, under the aggregate limit, an individual is

free to donate a meaningful amount to a candidate in

every single federal election each cycle. The current

$48,600 aggregate contribution limit to candidates

allows an individual contributor to give more than

$100 to a candidate in every single federal election

each cycle.

10 On top of this, contributors can give

$74,600 to party committees and PACs that will assist

these candidates. Furthermore, “[n]othing in [the

challenged cap] limits the amount [McCutcheon]

may independently expend in order to advocate

political views; rather, the statute restrains only the

amount that [he] may contribute.” Cal. Med. Ass’n v.

FEC, 453 U.S. 182, 195 (1981). McCutcheon may

spend independently without limit to promote his

favored candidates, donate unlimited money to socalled “Super PACs” for independent expenditures,

and fundraise and volunteer other services to campaigns.

Second, the aggregate limits fully enable an indi12

10

The 2014 elections will include 435 House races and 33

regular Senate elections. Additionally, there are expected to

be four special elections in 2013 and 2014, for seats left vacant

by the resignations of Senators John Kerry and Jim DeMint

and the deaths of Senators Daniel Inouye and Frank

Lautenberg, for a total of 472 federal elections. An individual

could donate approximately $103 to a candidate in each and

every one of these 472 federal races.
vidual to imbue contributions with a symbolic dimension that this Court has identified as both a practical

and constitutionally significant feature of individual

contributions. See Shrink Missouri, 528 U.S. at 386.

For example, McCutcheon has made a series of contributions of $1,776 because he finds that particular

number “especially meaningful.” McCutcheon Br. at

30. Under the current biennial aggregate limit of

$48,600 to candidates, he could make as many as

2,736 contributions of 1,776¢. In other words, he

could make contributions in an amount that has the

same symbolic and numerological significance to far

more candidates than there are major-party federal

nominees in any election (and likely more than there

are even candidates for such nominations).

Third, with respect to their effects on candidates,

party committees, and PACs, the aggregate limits

leave them “ample opportunities for soliciting federal funds on behalf of entities subject to FECA’s

source and amount restrictions.” McConnell, 540 U.S.

at 139. Cf. Buckley, 424 U.S. at 21 (observing

that contribution limits may not be closely drawn “if

the limitations prevented candidates and political

committees from amassing the resources necessary

for effective advocacy.”). During the 2012 election

cycle, the six national party committees and the two

major party presidential candidates raised nearly

$1.7 billion in individual contributions.

11 This is in

addition to billions more contributed to 468 Senate

13

11

See FEC Two-Year Summary, Total Contributions for the

DNC, DSCC, DCCC, RNC, NRSC, NRCC, Barack Obama, and

Mitt Romney, available at http://www.fec.gov/finance/ disclosure/candcmte_info.shtml.
and House candidates, 50 state party committees,

and thousands of PACs, not to mention independent

expenditures on behalf of the candidates. The billions of dollars contributed make clear that the

aggregate contribution limits impose only at most

minor hardship on candidate, party committee, and

PAC fundraising.

The Constitution does not require that an individual be allowed to spend virtually unlimited sums of

money for the “undifferentiated symbolic act of contributing” to political campaigns. Shrink Missouri,

528 U.S. at 386. On the contrary, the existing aggregate limits “entail[] only a marginal restriction upon

the contributor’s ability to engage in free communication,” Buckley, 424 U.S. at 21, and should therefore

be upheld upon the government’s showing of a sufficiently important interest.

C. FECA’s Aggregate Contribution Limits Serve

an Essential Function of Combating Corruption

and the Public Perception of Corruption

FECA’s aggregate contribution limits easily meet

the test of serving a “sufficiently important” government interest. As this Court has recognized since the

earliest days of campaign finance regulation, contributions to candidates for federal office as well as

contributions to political parties and PACs, pose a

risk of quid pro quo corruption or the appearance of

such corruption. See Buckley, 424 U.S. at 28 (observing that the “reality or appearance of corruption [is]

inherent in a system permitting unlimited financial

contributions.”); see also Citizens United, 558 U.S. at

359 (noting that “contribution limits . . . have been an

accepted means to prevent quid pro quo corrup14
tion”); FEC v. Colo. Republican Fed. Campaign

Comm., 533 U.S. 431, 440-41 (2001) (“Colorado II”)

(observing that “limits on contributions are more

clearly justified by a link to political corruption than

limits on other kinds of unlimited political spending

are”). The aggregate contribution limits are justified

today, just as they were when Buckley was decided,

by the interest in preventing corruption and the

appearance of corruption.

1. The aggregate limits address the real and serious threat of corruption. The Appellants reason that

the existing base limits represent a threshold below

which there is no cognizable danger or corruption

and, extrapolating from that, claim that numerous

contributions at or below that limit to different candidates, parties, and committees likewise create no

danger of corruption. See McCutcheon Br. at 37-38,

44-51; RNC Br. at 36 (“Doing something posing zero

cognizable risk multiple times does not increase the

risk.”) (emphasis in original). Appellants further contend that prohibitions against earmarking, one individual controlling multiple PACs, base contribution

limits on PAC and party committee giving, and limits

on coordination prevent circumvention of base contribution limits, making aggregate limits unnecessary. See McCutcheon Br. at 39-51; RNC Br. at 16-24,

39-42.

This reasoning is flawed in every particular. First,

the fact that Congress has chosen particular base

limitations does not mean that they pose no risk of

corruption. Rather, Congress chose base limitations

to guard against corruption in a way that only minimally restricts expression and association. The fact

15
that it chose a particular maximum for candidate

contributions does not preclude supplemental efforts

to prevent corruption or the appearance of it. As the

Buckley Court observed, if the Court “is satisfied that

some limit on contributions is necessary, a court has

no scalpel to probe” the specific limit Congress

chose. 424 U.S. at 30.

Second, Appellants presume that only a large donation directly to one candidate can have a corruptive

effect. While this argument might be plausible if each

candidate operated truly independently and circumvention were easily detectable, the reality is that this

country’s electoral process is nearly completely dominated by two political parties that each operate as a

team. “What a realist would expect to occur has

occurred. Donors give to the party with the tacit understanding that the favored candidate will benefit.”

Colorado II, 533 U.S. at 458. Often, this is accomplished

at the solicitation of a single candidate and one payment from the contributors. FEC rules allow “joint

fundraising committees” to accept one check for as

many candidates and committees as are part of the

joint fundraising operation. 11 C.F.R. § 102.17. Although

joint fundraising committees must initially allocate contributions amongst the participants, id. at

§ 102.17(c)(1), national or state party committees are

free to transfer unlimited amounts among themselves,

id. §§ 102.6(a)(1)(ii), 113.2(c), candidates are then free

to transfer unlimited amounts to party committees,

and party committees may also assist candidates by

making coordinated expenditures that may greatly

exceed the contribution limits that apply to other

donors, 2 U.S.C. § 441a(d).

16
Notwithstanding Appellant RNC’s insistence that

the national party committees are “separate legal

entities, with separate histories . . . [and] their own

agendas,” RNC Br. at 33, in fact the parties’ fundraising and fortunes are extensively interconnected, and

a gift to one candidate, party committee, or PAC may

be viewed and may function as a gift to other party

members. Because of this, Congress determined that

aggregate limits are necessary to ensure that political

parties and their leadership are not beholden to large

contributors. Otherwise, base contributions without

aggregate contributions would be largely meaningless. Aggregate limits act as “a corollary of the basic

individual contribution limitation,” preventing their

circumvention. Buckley, 424 U.S. at 38.

In upholding the aggregate contribution limits, the

Buckley Court observed that the base limits could

easily be circumvented “through the use of unearmarked contributions to political committees likely

to contribute to that candidate, or huge contributions

to the candidate’s political party.” 424 U.S. at 38. As

the Court later explained in upholding the ban on

“soft money” contributions to national parties:

The idea that large contributions to a national

party can corrupt or, at the very least, create the

appearance of corruption of federal candidates

and officeholders is neither novel nor implausible.

For nearly 30 years, FECA has placed strict dollar

limits and source restrictions on contributions that

individuals and other entities can give to national,

state, and local party committees for the purpose

of influencing a federal election. The premise

behind these restrictions has been, and continues

17
to be, that contributions to a federal candidate’s

party in aid of that candidate’s campaign threaten

to create—no less than would a direct contribution

to the candidate—a sense of obligation. This is particularly true of contributions to national parties,

with which federal candidates and officeholders

enjoy a special relationship and unity of interest.

McConnell, 540 U.S. at 144 (internal citation and quotation marks omitted); see also id. at 151 (discussing the

special access to discuss legislative matters that parties provide to large donors); Colorado II, 533 U.S. at

452 (“Parties thus perform functions more complex

than simply electing candidates; whether they like it or

not, they act as agents for spending on behalf of those

who seek to produce obligated officeholders.”).

This Court likewise has already addressed the

argument that earmarking prohibitions render protections against circumvention unnecessary. In

Colorado II, a state political party challenging coordinated spending limits argued that circumvention

was not a concern because of the earmarking prohibition. As the Court explained, “This position, however, ignores the practical difficulty of identifying and

directly combating circumvention under actual political conditions” where “circumvention is obviously

very hard to trace.” 533 U.S. at 462. “The earmarking

provision . . . would reach only the most clumsy

attempts to pass contributions through to candidates. To treat the earmarking provision as the outer

limit of acceptable tailoring would disarm any serious effort to limit” circumvention. Id. Appellants provide no facts or argument to warrant the Court’s

reconsideration of that conclusion.

18
“Despite years of enforcement of the challenged

limits, substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law, and it shows beyond serious doubt how

contribution limits would be eroded if inducement to

circumvent them were enhanced” by invalidating

aggregate contribution limits. Colorado II, 533 U.S. at

457. The aggregate limits fill obvious cracks in the

system, and the hypothesis that money otherwise

would flow through these cracks is not merely plausible but certain. There is more than enough evidence for the Court to affirm on this ground. See

Shrink Missouri, 528 U.S. at 391 (“The quantum of

empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or

down with the novelty and plausibility of the justification raised.”); FEC v. Nat’l Right to Work Comm.,

459 U.S. 197, 210 (1982) (“Nor will we second guess a

legislative determination as to the need for prophylactic measures where corruption is the evil

feared.”).

2. The aggregate limits also combat the public perception of corruption that comes from massive campaign contributions. See Buckley, 424 U.S. at 27

(observing that the “impact of the appearance of corruption” is “[o]f almost equal concern as the danger

of actual quid pro quo arrangements”). Corruption is

notoriously difficult to prove, as corrupt contributors

and politicians may avoid directly acknowledging

what they are doing, and elected officials’ legislative

actions enjoy constitutional protection. See id. at 27-

28 (noting that “laws making criminal the giving and

taking of bribes deal with only the most blatant and

19
specific attempts of those with money to influence

governmental action.”). Contribution limits therefore serve a “preventative” function and “ensure

against the reality or appearance of corruption.”

Citizens United, 558 U.S. at 357 (internal citation

omitted). Even if the vast majority of politicians

resist the temptation to repay large contributors with

improper favors, “Congress was justified in concluding that the interest in safeguarding against the

appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large

monetary contributions be eliminated.” Buckley, 424

U.S. at 30.

Preventing public perception of corruption is

critical because representative democracy is

premised on the representation of voters, not moneyed interests. If voters believe politicians serve

donors’ interests over the public interest, our democracy is fundamentally undermined. The Buckley

Court held that “Congress could legitimately conclude that the avoidance of the appearance of

improper influence is also critical if confidence in the

system of representative Government is not to be

eroded to a disastrous extent.” Id. (citation, quotation marks, and ellipses removed). “Take away

Congress’ authority to regulate the appearance of

undue influence and the cynical assumption that

large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” McConnell, 540 U.S. at 144 (quoting Shrink

Missouri, 528 U.S. at 390; internal quotation marks

omitted).

Survey research demonstrates that Americans per20
ceive a threat of corruption. For example, in a survey

of more than 2,000 people, 70 percent of respondents

said that politicians vote to please their campaign

contributors either “all the time” or “often,” while

only 18 percent said they did so “sometimes” or

“never.” Abby Blass, Brian Roberts, Daron Shaw,

Corruption, Political Participation, and Appetite

for Reform: Americans’ Assessment of the Role of

Money in Politics, 11 Election L. J. 380, 385-86

(2012). Similarly, when asked to rate who their elected officials listen to and who has power in

Washington, DC, “campaign contributors” received

the highest score, while a “member’s constituency

preferences” received the lowest. Id. at 386. Thus,

sizeable majorities believe that currently permissible

large contributions have a corrupting influence on

public officials, and that perception would likely

increase if aggregate limits were removed and

wealthy donors could contribute millions of dollars

each election cycle.

Contributors themselves may perceive large contributions as the purchase price for political favors.

As this Court has recognized, lobbyists, corporate

executives, and wealthy individuals often contribute

large amounts to political campaigns for the express

purpose of buying influence. McConnell, 540 U.S. at

124-25, 147. If, on the other hand, they choose not to

give, “[b]usiness and labor leaders believe, based on

their experience, that disappointed Members, and

their party colleagues, may shun or disfavor them

because they have not contributed.” Id. at 125 n.13.

Politicians in turn look to lobbyists for large contributions, and, absent the aggregate caps, lobbyists

21
will be pressured to give even more.

12 It certainly

“was not unwarranted for Congress to conclude that

the selling of access gives rise to the appearance of

corruption.” Id. at 154.

Congress reasonably concluded that absent the

aggregate limits, the size and frequency of these contributions inevitably would increase and would lead

to more such stories arousing suspicions of corruption. This Court should uphold Congress’ long-recognized power to mitigate the corrosive effects of large

donations on democratic processes though modest

aggregate contribution limits.

CONCLUSION

For the reasons stated above, the judgment of the

district court should be affirmed.

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12

Kevin Bogardus, Lobbyists Fear Shakedown if Supreme

Court Lifts Campaign Contributions Cap, The Hill, Feb. 26,

2013, available at http://thehill.com/business-a-lobbying/284817-lobbyists-fear-shakedown-if-court-lifts-campaigncap (‘“I like the limit because it gives me an excuse not to give

more,’ said one Republican lobbyist. ‘If there was no limit, I

would give more.’”).
Respectfully submitted,

ALICE O’BRIEN

(Counsel of Record)

JASON WALTA

LISA POWELL

NICHOLAS MUELLER

National Education Association

1201 16th Street, N.W.

Washington, DC 20036

(202) 822-7035

WILLIAM LURYE

JESSICA ROBINSON

American Federation of State,

County and Municipal Employees

1625 L Street, N.W.

Washington, DC 20036

(202) 429-1293

JUDITH A. SCOTT

MARK SCHNEIDER

Service Employees

International Union

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 730-7000

LYNN K. RHINEHART

CRAIG BECKER

LAURENCE E. GOLD

American Federation of

Labor-Congress of Industrial

Organizations

815 16th Street, N.W.

Washington, DC 20036

(202) 637-5310

23