No. 16-865 

IN THE

Supreme Court of the United States 

REPUBLICAN PARTY OF LOUISIANA, ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

On Appeal from the United States 

District Court for the District of Columbia 

BRIEF OF AMICI CURIAE

PUBLIC CITIZEN, INC., DEMOCRACY 21,

AND CAMPAIGN LEGAL CENTER

IN SUPPORT OF APPELLEE

AND SUMMARY AFFIRMANCE 

SETH P. WAXMAN SCOTT L. NELSON

CATHERINE M.A. CARROLL Counsel of Record 

WILMER CUTLER PICKERING ALLISON M. ZIEVE

 HALE AND DORR LLP PUBLIC CITIZEN 

1875 Pennsylvania Avenue NW LITIGATION GROUP

Washington, DC 20006 1600 20th Street NW 

(202) 663-6000 Washington, DC 20009 

 (202) 588-1000 

 snelson@citizen.org 

Attorneys for Amici Curiae 

February 2017 

ADDITIONAL COUNSEL LISTED ON INSIDE COVER
TREVOR POTTER DONALD J. SIMON

PAUL M. SMITH SONOSKY, CHAMBERS,

TARA MALLOY SACHSE, ENDRESON & 

CAMPAIGN LEGAL CENTER PERRY, LLP 

1411 K Street NW, Suite 1400 1425 K Street NW 

Washington, DC 20005 Suite 600 

(202) 736-2200 Washington, DC 20005 

 (202) 682-0240 

FRED WERTHEIMER

DEMOCRACY 21 

2000 Massachusetts Ave. NW 

Washington, DC 20036 

(202) 355-9600 
i 

QUESTION PRESENTED

Whether the provisions of the Bipartisan Campaign 

Reform Act imposing contribution limits on funds used 

by state and local party committees for federal election 

activity, which this Court has twice upheld against constitutional challenge, are unconstitutional on their face or 

as applied to funds used for “independent” spending. 
ii 

TABLE OF CONTENTS 

QUESTION PRESENTED ................................................. i 

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

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

INTRODUCTION AND SUMMARY OF 

ARGUMENT ................................................................. 1 

ARGUMENT ......................................................................... 6 

I. McConnell and RNC control this case. ...................... 6 

II. This Court’s decisions have not displaced the 

underpinnings of McConnell and RNC. ................... 11 

A. The provisions at issue limit contributions. ......... 11 

B. The Court’s statements about corruption in 

Citizens United and McCutcheon do not 

affect McConnell’s and RNC’s soft-money 

holdings. .................................................................... 14 

C. The Louisiana Republicans’ focus on the 

“independence” of their spending reflects a 

fundamental misunderstanding of the 

interest served by the contribution limits............ 18 

III. The Louisiana Republicans’ arguments would 

have exceptionally far-reaching consequences. ....... 21 

CONCLUSION ................................................................... 23 
iii 

TABLE OF AUTHORITIES 

Cases: Page(s) 

Buckley v. Valeo, 

424 U.S. 1 (1976) .............................. 10, 11, 12, 13, 14, 17 

Citizens United v. FEC, 

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

Colo. Repub. Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) .................................................. 10, 19 

FEC v. Colo. Repub. Fed. Campaign Comm., 

533 U.S. 431 (2001) .................................................. 11, 19 

McConnell v. FEC, 

540 U.S. 93 (2003) ................................................. passim 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ........................................... passim 

Republican Nat’l Comm. v. FEC, 

561 U.S. 1040 (2010), summarily aff’g 

698 F. Supp. 2d 150 (D.D.C. 2010) ...................... passim 

Other:

https://www.opensecrets.org/outsidespending/

index.php ......................................................................... 22 

https://www.opensecrets.org/parties/ ............................... 22 
INTEREST OF AMICI CURIAE1

Amici curiae Public Citizen, Inc., Democracy 21, and 

Campaign Legal Center are organizations dedicated to 

fighting the corrupting influence of money in our electoral politics. They have devoted years of effort to promoting campaign finance reform legislation, encouraging 

appropriate implementation of that legislation by the 

Federal Election Commission (FEC), and participating 

as parties, amici curiae and counsel in litigation over the 

construction and constitutionality of campaign finance 

laws and regulations at all levels of the federal court system and in state courts as well. Amici submitted a brief 

to the three-judge court supporting the constitutionality 

of the statutory provisions at issue in this case. They now 

submit this brief because they believe that the threejudge district court’s ruling correctly applies dispositive 

precedents of this Court, and that a discussion of the applicable legal principles could assist this Court in determining that plenary consideration of this appeal is unnecessary. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

This case presents an issue this Court has already 

decided twice: Whether the provisions of the Bipartisan 

Campaign Reform Act (BCRA) that impose source and 

amount limits, as well as reporting requirements, on contributions used by state and local political party committees for federal election activity are constitutional. The 

–––––––––––––––––––––––– 1

 This brief was not authored in whole or part by counsel for a 

party. No one other than amici curiae or their counsel made a monetary contribution to preparation or submission of this brief. Pursuant to Rule 37.2(a), counsel of record for the parties received 10 

days’ notice of the filing of this brief, and written consents to its filing from counsel for the parties are on file with the Clerk. 
2 

Court upheld those provisions, which prevent state and 

local party committees from using “soft money” to benefit federal candidates, against a facial challenge in 

McConnell v. FEC, 540 U.S. 93 (2003). McConnell sustained the soft-money ban because it “is narrowly focused on regulating contributions that pose the greatest 

risk of ... corruption [of federal candidates]: those contributions to state and local parties that can be used to 

benefit federal candidates directly.” Id. at 167. In 2010, 

the Court upheld the soft-money ban against a challenge 

seeking to invalidate it as applied to particular types of 

federal election activity that assertedly posed no risk of 

corrupting federal candidates. Republican Nat’l Comm. 

v. FEC, 561 U.S. 1040 (2010), summarily aff’g 698 F. 

Supp. 2d 150 (D.D.C. 2010) (RNC). 

In this case, the Republican Party of Louisiana and 

two local Louisiana Republican Party committees (collectively, the “Louisiana Republicans”) mount a facial challenge to the state- and local-party soft-money ban that is 

directly foreclosed by McConnell, and an as-applied 

challenge that is not meaningfully distinguishable from 

the one the Court summarily rejected in RNC. The 

three-judge district court correctly held that this Court’s 

controlling authority requires rejection of those challenges and that the Louisiana Republicans’ arguments 

that more recent decisions of this Court support the 

challenges are meritless. In their jurisdictional statement, the Louisiana Republicans rehash the arguments 

that the three-judge court’s opinion thoroughly considered and correctly rejected. Because those arguments 

fail to demonstrate the existence of issues substantial 

enough to require plenary consideration of this case, the 

Court should summarily affirm the decision of the district court. 
3 

The Louisiana Republicans’ arguments boil down to 

one basic, and erroneous, proposition: that the First 

Amendment forbids Congress to limit contributions used 

by state and local political parties for federal election activities that are conducted independently of the candidates for federal office whose candidacies they benefit. 

That proposition underlies their claimed as-applied and 

facial challenges, both of which assert that BCRA’s softmoney ban cannot be applied to funds used for any activity by state and local parties that is not coordinated with 

federal candidates. 

Those challenges cannot be squared with the holding 

of McConnell, which found the soft-money ban facially 

constitutional for reasons that had nothing to do with 

whether state and local party spending on federal election activity was independent or coordinated. And in 

RNC, this Court upheld the application of the soft-money 

ban to independent spending by state and local parties, 

rejecting the same argument advanced here: that donations to parties for independent expenditures cannot be 

regulated. 

The Louisiana Republicans’ suggestions that 

McConnell’s and RNC’s soft-money holdings have been 

undermined by the Court’s subsequent decisions are insubstantial. First, they contend that this Court’s decision 

in McCutcheon v. FEC, 134 S. Ct. 1434 (2014), requires 

that the soft-money provisions be treated as expenditure 

limits rather than contribution limits and thus subjected 

to strict scrutiny rather than the intermediate scrutiny 

applied to contribution limits. That argument reflects a 

fundamental misunderstanding of the difference between contribution and spending limits. The BCRA provisions at issue do not limit how much state and local 

parties can spend on federal election activity. Rather, 
4 

they provide that the funds used for such spending must 

be raised in limited amounts, and only from sources 

permissible under the Federal Election Campaign Act 

(FECA). Those features define what a contribution limit 

is. As the three-judge court correctly held, nothing in 

McCutcheon suggests otherwise. Indeed, McCutcheon

itself not only applied intermediate scrutiny in striking 

down the contribution limits at issue in that case, but 

went out of its way to state that its holding “clearly does 

not overrule McConnell’s holding about ‘soft money.’” 

134 S. Ct. at 1451 n.6. 

Second, the Louisiana Republicans wrongly contend 

that the soft-money holdings of McConnell and RNC

have been superseded by a narrower conception of the 

government’s anti-corruption interest exemplified in the 

Court’s opinion in Citizens United v. FEC, 558 U.S. 310 

(2010), and repeated in the plurality opinion in McCutcheon. But this Court in RNC has already rejected the 

proposition that the soft-money ban cannot be squared 

with Citizens United’s view of the anti-corruption interest. The soft money restrictions are fully compatible with 

that view of corruption because they rest on a record 

demonstrating that large contributions to party organizations present opportunities for the reality or appearance of prearranged, corrupt bargains involving the candidates who benefit. 

Finally, the Louisiana Republicans contend that because the spending in which they wish to engage using 

contributions not subject to FECA limits will be “independent,” the party spending cannot pose a risk of corrupting or appearing to corrupt candidates. As the threejudge court held, that argument “misunderstand[s] the 

way in which large soft-money contributions to political 

parties create a risk of quid pro quo corruption.” J.S. 
5 

App. 18a. The threat of actual or apparent corruption at 

which the state-party soft-money provisions are directed 

comes not from the party spending, but “from the contribution of soft money to the party in the first place.” 

Id. at 18a. The close and unique relationship between 

parties and their candidates, which differentiates parties 

from other campaign spenders, creates the threat. In 

light of that relationship, the possibility of corruption 

(and of circumvention of other anticorruption measures) 

inheres in unlimited contributions to parties and exists 

regardless of whether the party proceeds to spend those 

funds independently or in coordination with the candidate. The harm the statute targets is not that parties will 

corrupt candidates by spending to support their candidacies, but that contributors will corrupt candidates, or appear to corrupt them, by contributing to the common political enterprise made up of parties and candidates. 

The consequence of the Louisiana Republicans’ argument would be the invalidation of any limits on 

amounts contributed to political parties, other than contributions of funds used for the smaller amounts of coordinated spending in which the parties engage. Nothing in 

this Court’s decisions supports such a holding. The Court 

has uniformly upheld laws imposing reasonable limits on 

contributions to political parties, and has repeatedly disclaimed any intention to back away from its holdings sustaining the soft-money ban. The Louisiana Republicans’ 

effort to overturn settled law presents no issue meriting 

plenary consideration, and the Court should therefore 

summarily affirm the three-judge court’s well-reasoned 

decision. 
6 

ARGUMENT 

I. McConnell and RNC control this case. 

This Court has twice affirmed the constitutionality of 

BCRA’s state-party soft-money provisions, in McConnell, 540 U.S. at 161–73, and RNC, 561 U.S. 1040. In neither case did the Court’s holding that Congress may limit the contributions that state and local parties use for 

federal election activity rest in any way on the premise 

that federal election activity expenditures were coordinated with federal candidates. As the three-judge court 

recognized, the Louisiana Republicans’ assertion that 

the soft money provisions cannot be applied to contributions used for “independent” federal election activity 

cannot be squared with either ruling. 

A. McConnell’s holding that the soft-money provisions are facially constitutional rested on a number of 

bases. First, the record substantiated the view that the 

close relationship between political parties and their federal candidates made contributions to the parties a 

source of potential corruption, or its appearance, regardless of how the funds were ultimately used. See 540 U.S. 

at 143–56. Second, the Court found reasonable Congress’s conclusion that “state [party] committees function as an alternative avenue [to national party committees] for precisely the same corrupting forces,” id. at 

164, and that failing to restrict contributions used by 

state parties for activities affecting federal elections 

would thus allow ready circumvention of regulation of 

contributions to national parties, id. at 165–66. And 

third, the Court determined that the soft money provisions were not overbroad because their limitation to 

funding of federal election activity was “narrowly focused on regulating contributions that pose the greatest 

risk of ... corruption: those contributions to state and lo-
7 

cal parties that can be used to benefit federal candidates 

directly.” Id. at 167. 

As the three-judge court recognized, “McConnell’s 

holding forecloses plaintiffs’ facial challenge.” J.S. App. 

13a. It also forecloses the Louisiana Republicans’ asapplied challenge to any application of the soft-money 

ban to spending that is not coordinated with candidates. 

McConnell specifically rejected the contention that the 

state-party soft-money ban encompassed “activities that 

cannot possibly corrupt or appear to corrupt federal officeholders.” 540 U.S. at 166. As the three-judge court 

pointed out, McConnell “canvassed the full range of activity constituting [federal election activity]” and concluded that the soft-money ban’s application to all federal election activity was narrowly tailored because all of 

that activity substantially benefits federal candidates. 

J.S. App. 16a. None of the Court’s reasoning in upholding limits on contributions used for such activity was 

premised on the idea that the state and local parties’ federal election activity was coordinated with independent 

of federal candidates. See McConnell, 540 U.S. at 167–71. 

Thus, the three-judge court correctly concluded that the 

Louisiana Republicans’ as-applied challenge, like its facial attack, “is incompatible with McConnell’s approach in 

rejecting the facial challenge.” J.S. App. 16a. 

B. In RNC, state and local Republican party committees joined in an as-applied challenge to BCRA’s stateparty soft money provisions, contending that they were 

unconstitutional as applied to the parties’ independent 

federal election activity that did not “target” the campaigns of specific federal candidates. A three-judge district court rejected that argument, reasoning that 

McConnell, in holding that the state-party soft money 

provisions were not overbroad, had considered and 
8 

“squarely rejected” the argument that the provisions 

were unconstitutional as applied to activities that ostensibly “‘pose[d] no conceivable risk of corrupting or appearing to corrupt federal officeholders.’” 698 F. Supp. 

2d at 161 (quoting McConnell, 540 U.S. at 166). The RNC

three-judge court concluded that because McConnell’s 

holding that the provisions were facially constitutional 

rested on the view that the soft-money provisions could 

constitutionally be applied to “all” federal election activity as defined in BCRA, the as-applied challenge was inconsistent with McConnell’s reasoning. Id. 

The RNC three-judge court also rejected the plaintiffs’ argument that McConnell’s soft-money holding had 

been undermined by Citizens United. The court pointed 

out that “Citizens United did not disturb McConnell’s 

holding with respect to the constitutionality of BCRA’s 

limits on contributions to political parties.” 698 F. Supp. 

2d at 153 (citing Citizens United, 558 U.S. at 361). 

The parties in RNC appealed the three-judge court’s 

ruling to this Court and argued, as the Louisiana Republicans do here, that “the government must demonstrate 

that each application of BCRA’s prohibition on nonfederal money targets an activity that, if funded by nonfederal money, would create an appreciable risk of actual or 

apparent quid pro quo corruption of federal officeholders.” RNC v. FEC, No. 09-1287, Jurisdictional Statement, at 10 (U.S. filed April 23, 2010) (“RNC J.S.”). The 

appellants, much like the Louisiana Republicans, invoked Citizens United’s holding that independent expenditures by corporations cannot be limited on an anticorruption rationale, arguing that contribution limits accordingly could not be applied to state and local parties’ 

federal election activities that were independent and not 

“targeted” at specific federal candidates: 
9 

Citizens United makes clear that independent expenditures—no matter their size—do not create a 

risk of quid pro quo corruption. It follows, a fortiori, that parties’ solicitation and expenditure of donations of nonfederal money do not have sufficient 

quid pro quo potential to warrant stifling the 

speech and associational rights of parties and their 

members. 

Id. at 19. This Court rejected those arguments and 

summarily affirmed the three-judge court’s decision. 561 

U.S. 1040. 

The Louisiana Republicans seek to avoid RNC on the 

theory that the as-applied challenge in that case was different from the one here. The challenge to the stateparty soft-money provisions in RNC sought to hold the 

statute unconstitutional as applied to funds raised for 

independent spending that was not “targeted” at federal 

elections or candidates. The challenge here seeks a ruling that the soft-money ban is unconstitutional as applied 

to all independent spending on federal election activity. 

But as the language of the RNC jurisdictional statement 

quoted above makes clear, the claim that the spending at 

issue in RNC was independent as well as “non-targeted” 

was an essential part of the challengers’ argument in this 

Court. The activity that the RNC plaintiffs sought to 

immunize from the soft-money ban (fundraising for 

“non-targeted” independent spending) was a wholly included subset of the activity the Louisiana Republicans 

seek to immunize here (fundraising for all independent 

spending). This Court’s rejection of the narrower asapplied challenge in RNC thus applies, a fortiori, to the 

broader as-applied and facial challenges presented here. 

The three-judge court was therefore correct in concluding that the outcome in RNC “fully” supports the same 
10 

result “with regard to the independent [federal election 

activity] sought to be conducted by plaintiffs in this 

case.” J.S. App. 16a. 

C. This Court’s holdings in McConnell and RNC

concerning BCRA’s soft-money provisions are fully consistent with the body of the Court’s campaign finance jurisprudence. The Court has long recognized the legitimacy of base contribution limits applicable both to candidates, see Buckley v. Valeo, 424 U.S. 1, 26–29 (1976), 

and to political parties, see Colo. Repub. Fed. Campaign 

Comm. v. FEC, 518 U.S. 604, 616-17 (1996) (controlling 

opinion of Breyer, J.) (Colorado I); McConnell, 540 U.S. 

at 144; McCutcheon, 134 S. Ct. at 1446. 

Moreover, each time the Court has addressed 

BCRA’s soft-money provisions, it has either upheld them 

(in McConnell and RNC) or specifically disclaimed any 

intent to call them into question. In Citizens United, for 

example, the Court took note of the legislative record 

supporting BCRA’s soft-money provisions and pointedly 

observed that the case before it was not about soft money. 558 U.S. at 360–61. As Judge Kavanaugh, writing for 

the three-judge court in RNC, put it, “Citizens United

expressly left this aspect of McConnell intact,” 698 F. 

Supp. 2d at 157, and “did not disturb McConnell’s holding with respect to the constitutionality of BCRA’s limits 

on contributions to political parties.” Id. at 153. This 

Court’s post-Citizens United decision in RNC rejecting 

the challenge to the soft-money provisions confirmed 

Judge Kavanaugh’s view. The subsequent plurality opinion in McCutcheon likewise explicitly stated that it did 

not affect McConnell’s soft-money holding. 134 S. Ct. at 

1446, n.6. 
11 

This Court’s directly controlling decisions thus validate the three-judge court’s ruling. The decision below 

should be summarily affirmed. 

II. This Court’s decisions have not displaced the 

underpinnings of McConnell and RNC. 

A. The provisions at issue limit contributions. 

In urging this Court to disregard McConnell and 

RNC and strike down BCRA’s soft-money provisions as 

applied to the funding of “independent” federal election 

activity, the Louisiana Republicans posit that the provisions are actually spending limits subject to strict scrutiny, not contribution limits subject to less demanding 

First Amendment scrutiny. See Buckley, 424 U.S. at 20–

25. The opinion of the three-judge court thoroughly addresses that argument and demonstrates its lack of merit. J.S. App. 12a–15a. 

The challenged provisions do not limit the amount 

state and local parties may spend on federal election activity. State and local parties are free to spend as much 

as they want as long as the spending is not coordinated 

with federal candidates. (Coordinated spending is generally treated as a contribution to the candidate and is subject to limits that are not challenged here. See FEC v. 

Colo. Repub. Fed. Campaign Comm., 533 U.S. 431 (2001) 

(Colorado II).) BCRA limits the sources and amounts of 

contributions that the parties may accept and use for 

federal election purposes, not the total amount of funds 

that the parties may accumulate and spend. 

If words are to retain their meaning, such provisions 

are contribution limits, not spending limits. Of course, 

the statute applies those contribution limits only to funds 

used for certain purposes—that is, federal election activity, as well as express advocacy involving federal candi-
12 

dates and contributions to federal candidates. But from 

FECA’s very beginnings, contribution limits have applied only to funds raised for purposes related to federal 

elections: Even the limits on contributions to federal 

candidates apply only to contributions to be used to influence federal elections, not gifts intended for other 

purposes. That does not mean that those limits are not 

contribution limits. 

Not surprisingly, then, this Court has repeatedly rejected the exact argument the Louisiana Republicans 

press here. In McConnell, the Court addressed the contention that the state-party soft-money provisions should 

be treated as spending limits subject to strict scrutiny, 

and concluded that although BCRA’s state-party softmoney ban “prohibits state party committees from 

spending nonfederal money on federal election activities,” it does not “in any way limit[] the total amount of 

money parties can spend. ... Rather, [it] simply limit[s] 

the source and individual amount of donations. That [it] 

do[es] so by prohibiting the spending of soft money does 

not render [it an] expenditure limitation[].” 540 U.S. at 

139. McConnell therefore sustained the statute under 

the level of scrutiny applicable to contribution limits under Buckley. 

RNC presented a rehash of the same argument. Like 

the Louisiana Republicans here, the plaintiffs in RNC

argued that, as applied to their proposed spending on 

federal election activity that was not “targeted” at federal candidates, the contribution limits imposed by BCRA 

would “function as expenditure limits.” 698 F. Supp. 2d 

at 156. The three-judge court held that the RNC plaintiffs’ “argument flies in the face of McConnell, which 

squarely held that the level of scrutiny for regulations of 

contributions to candidates and parties does not depend 
13 

on how the candidate or party chooses to spend the money or to structure its finances.” Id. The RNC three-judge 

court further noted that the majority opinion in Citizens 

United “expressly left intact this portion of McConnell.” 

Id. The RNC court therefore applied the “less rigorous 

scrutiny” applicable to “limits on contributions.” Id. 

In the jurisdictional statement in RNC, the appellants, like the Louisiana Republicans here, urged that 

strict scrutiny applied because, in their view, the softmoney ban functions as “an expenditure limit.” RNC J.S. 

12 n.2. This Court’s summary affirmance reflects the 

Court’s conclusion that that argument was not substantial enough to warrant plenary consideration. 

The Louisiana Republicans ask this Court to repudiate these precedents and treat the contribution limits 

applicable to state and local party committees as spending limits because, in McCutcheon, the plurality opinion 

described the contribution limits at issue there as implicating rights to engage in “speech.” See, e.g., 134 S. Ct. 

at 1449. But the McCutcheon plurality’s use of the term 

“speech” did not purport to change the standard of scrutiny applicable to contribution limits; it merely reflected 

the Court’s longstanding view that contribution limits 

affect speech sufficiently to call for scrutiny under the 

intermediate standard applied in Buckley. See 424 U.S. 

at 15–22. 

Thus, the McCutcheon plurality opinion expressly 

declined to “revisit Buckley’s distinction between contributions and expenditures and the corollary distinction in 

the applicable standards of review,” 134 S. Ct. at 1445, 

and it concluded that the aggregate limits at issue failed 

the less rigorous standard of scrutiny applicable to contribution limits under Buckley. See id. at 1446. And the 

opinion stated explicitly that its holding “clearly does not 
14 

overrule McConnell’s holding about soft money.” Id. at 

1451 n.6. Justice Thomas’s concurring opinion therefore 

criticized the plurality for adhering to Buckley’s standard of scrutiny for contribution limits. See id. at 1464 

(Thomas, J., concurring in the judgment). 

The three-judge court thus was correct in concluding 

that “the approach of the McCutcheon plurality is consistent with McConnell’s treatment of [the state-party 

soft-money ban] as a contribution limit subject to less 

demanding scrutiny.” J.S. App. 14a. The Louisiana Republicans’ assertion that McCutcheon actually stands for 

a proposition the Court expressly disavowed does nothing to establish the existence of an issue substantial 

enough to avoid summary affirmance here. 

B. The Court’s statements about corruption in 

Citizens United and McCutcheon do not 

affect McConnell’s and RNC’s soft-money 

holdings. 

The Louisiana Republicans also assert that Citizens 

United and McCutcheon adopted a narrow view of the 

compelling governmental interest in combatting corruption and the appearance of corruption—a view that they 

claim supersedes the rationale offered in McConnell for 

upholding BCRA’s soft-money provisions. As the threejudge court pointed out (J.S. App. 22a–23a), the Louisiana Republicans’ argument does not account for this 

Court’s rejection of exactly the same argument in RNC, 

and does not establish the existence of a substantial 

question with respect to the constitutionality of the statecourt soft-money ban. 

Like the Louisiana Republicans, the plaintiffs in the 

RNC case argued that the Court’s discussion of corruption in Citizens United effectively overruled McConnell’s 

soft-money ruling, despite the Court’s express disavowal 
15 

of any such intent. As the opinion below notes, Judge 

Kavanaugh’s opinion in RNC “explained in detail why 

the showing of quid pro quo corruption in McConnell

meets the standard set forth in Citizens United.” J.S. 

App. 22a–23a (citing 698 F. Supp. 2d at 158–60). 

In particular, the RNC three-judge court pointed out 

that, although Citizens United stated that mere access 

and ingratiation resulting from independent spending by 

unaffiliated persons and groups is not corruption, Citizens United had not validated what the McConnell record showed to have occurred in the soft-money era: “the 

selling of preferential access to federal officeholders and 

candidates in exchange for soft-money contributions.” 

698 F. Supp. 2d at 158. Nor, RNC concluded, did Citizens United’s discussion of corruption undermine the 

McConnell Court’s conclusion that candidates and parties are so closely connected that candidates value contributions to the parties nearly as much as they value 

contributions to their own candidacies. Thus, the same 

obvious anticorruption interest that unquestionably justifies candidate contribution limits validates party limits 

as well. See id. at 159. 

The central argument pervading the jurisdictional 

statement in RNC was that McConnell’s holding that 

BCRA’s soft-money provisions are constitutional was “no 

longer tenable” in light of Citizens United’s discussion of 

corruption. RNC J.S. 9; see also id. at 2–3, 8–15. In 

summarily affirming, the Court apparently found the 

plaintiffs’ reliance on Citizens United’s statements about 

corruption insufficient to create a substantial issue about 

the constitutionality of BCRA’s soft-money provisions. 

Rather, the affirmance in RNC strongly indicates that, 

as the three-judge court had found, Citizens United’s 
16 

discussion of corruption left McConnell’s soft-money 

holdings unscathed. 

The Louisiana Republicans’ recycling of the argument rejected in RNC adds nothing to the substantiality 

of their appeal. Nor does the intervening decision in 

McCutcheon add substance to the argument. The plurality opinion in McCutcheon briefly referenced Citizens 

United’s discussion of corruption, but did not alter or 

add to it in any way that could make a difference with 

respect to the constitutionality of BCRA’s soft-money 

provisions. See 134 S. Ct. at 1441, 1450–51. Nor did the 

McCutcheon plurality purport to disavow either 

McConnell or RNC’s holding that McConnell’s softmoney ruling remains valid after Citizens United. Rather, the plurality emphasized that McCutcheon “clearly” did not overrule McConnell. Id. at 1446 n.6. If, as this 

Court’s summary affirmance in RNC indicates, Citizens 

United’s comments on corruption left McConnell’s anticorruption rationale for soft-money limits intact, the 

McCutcheon plurality’s citation of Citizens United could 

not require a different result. 

Moreover, the discussion of corruption in Citizens 

United and McCutcheon provides no substantive basis 

for casting aside McConnell’s anticorruption rationale 

for approving BCRA’s soft money provisions. Citizens 

United, echoed by McCutcheon, stated that, in the absence of the opportunity for prearrangement and quid 

pro quo deals that contributions afford, any apparent ingratiation or preferential access that may result from 

purely independent spending by persons or groups unaffiliated with a candidate is not actual or apparent corruption that can justify a limit on such spending. Citizens 

United, 558 U.S. at 357–60; see McCutcheon, 134 S. Ct. 

at 1450–51. Neither Citizens United nor McCutcheon
17 

purported to validate preferential access or other forms 

of favoritism that result not from merely “[s]pending 

large sums,” id. at 1450, but from prearrangements or 

understandings reached in exchange for contributions. 

The Court acknowledged in Citizens United that the 

McConnell record established that such transactions had 

occurred in the soft money era. See Citizens United, 558 

U.S. at 360–61. Citizens United also recognized that the 

Court owed deference to congressional findings of such 

abuses. Id. at 361. And nothing in the McCutcheon plurality opinion’s citations of Citizens United suggests a 

retraction of those points. 

Critically, just as the majority in Citizens United

stressed that its decision did not overturn limits on soft 

money contributions, the McCutcheon plurality emphasized that the base limits on contributions—including the 

limits on contributions to party committees at issue 

here—remained in effect. Id. at 1451 & nn.6–7. The 

McCutcheon plurality strongly reaffirmed Buckley’s 

analysis of the anticorruption interests served by base 

limits. See, e.g., id. at 1441, 1450. The plurality’s explicit 

statement that it was not overruling McConnell only 

emphasizes the point. 

The McConnell record remains adequate to demonstrate a threat of actual or apparent corruption justifying 

party contribution limits under any standard. The 

McCutcheon plurality reaffirmed that “Congress may 

permissibly limit ‘the appearance of corruption stemming from public awareness of the opportunities for 

abuse inherent in a regime of large individual financial 

contributions.’” 134 S. Ct. at 1450 (quoting Buckley, 424 

U.S. at 27) (emphasis added). Even if a sale of access in 

exchange for a contribution to a party were not itself 

“corruption,” the existence of such transactions demon-
18 

strates that party contributions present the opportunity

for prearrangement and quid pro quo transactions: If 

such contributions can buy access, they surely also create the opportunity and, at least, the very real potential 

for even more sinister transactions and the appearance 

that such deals may be occurring. 

C. The Louisiana Republicans’ focus on the 

“independence” of their spending reflects a 

fundamental misunderstanding of the 

interest served by the contribution limits. 

The Louisiana Republicans rely heavily on the assertion that because the Court has held that independent 

expenditures themselves do not pose a sufficient risk of 

corruption to justify restricting them, the contribution 

limits imposed by BCRA must be unconstitutional as applied to funds to be used for the party committees’ independent spending on federal election activity. Again, 

however, the three-judge court thoroughly addressed 

the argument and explained that it fundamentally misperceives the rationale for the contribution limits. J.S. 

App. 18a. That rationale is not that a political party’s 

spending will corrupt its own candidates, but that large 

contributions to the party create the threat of quid pro 

quo corruption of the party’s candidates. Id. As the 

three-judge court put it, the Louisiana Republicans’ “effort to avoid McConnell based on the independent nature 

of their planned spending misconceives of the relevant 

quid as the spending by the party rather than the contribution to the party.” Id. at 21a. 

The three-judge court’s ruling recognizes that one 

reason that a party’s independent spending by itself may 

pose a lesser risk of corruption than spending by outside 

individuals or groups is that the party and its candidates 

already have a close relationship and conjunction of in-
19 

terests. See Colorado I, 518 U.S. at 615–18; see also id. at 

623. For that very reason, however, contributions to party committees present much the same threat of corruption as contributions to the candidates those party committees support and with whom they are intimately connected. Thus, as this Court has put it, parties, “whether 

they like it or not, ... act as agents for spending on behalf 

of those who seek to produce obligated officeholders.” 

Colorado II, 533 U.S. at 452. 

The Court has therefore held that limits on contributions to parties are constitutional even if limits on independent party spending are not, because it is the large 

contributions, not the party’s spending, that present the 

relevant threat of corruption. Thus, the controlling opinion in Colorado I emphasized that, although parties 

could spend in unlimited amounts if they did so independently, corruption could be held in check by adequate 

limits on the amounts donors could contribute to the parties. See 518 U.S. at 617. The opinion therefore suggested that “Congress, were it to conclude that the potential 

for evasion of the individual contribution limits was a serious matter, might decide to change the statute’s limitations on contributions to political parties.” Id. And when 

Congress in fact did so in BCRA by imposing new contribution limits that eliminated the parties’ ability to use 

soft money in connection with federal elections, the 

Court upheld those limits in McConnell—not because it 

found that party spending was inherently corrupting, 

but because the large contributions that fueled that 

spending posed the same risk of corrupting candidates 

as large contributions to the candidates themselves. See

540 U.S. at 143–56; 161–71. 

In particular, McConnell pointed to the “close connection and alignment of interests” between national 
20 

parties and federal candidates, id. at 155, and the similarly “close ties between federal candidates and state 

party committees,” id. at 161. That intimate relationship 

leads candidates to place enough value on large contributions to the parties to justify viewing such contributions 

as posing a threat of corruption similar to that of contributions to the candidates themselves, regardless of the 

particular way in which the money is ultimately spent in 

connection with federal elections. See id. at 156, 164–71.2 

The record in McConnell, moreover, amply demonstrated that regardless of the independence with which 

the parties may expend these funds in support of their 

electoral efforts and those of their candidates, the manner in which large contributions were raised by the parties presented ample opportunities for the reality or appearance of prearrangement and corrupt bargains between contributors and candidates. See 540 U.S. at 145–

56, 161–62. As the three-judge court noted below, this 

Court in Citizens United acknowledged that record in 

distinguishing the corporate expenditure prohibition at 

issue there from the soft-money provisions upheld in 

McConnell. See J.S. App. 18a (citing Citizens United, 

558 U.S. at 360–61). And the Court’s subsequent summary affirmance in RNC provides further confirmation 

–––––––––––––––––––––––– 2 Cf. RNC, 698 F. Supp. 2d at 159 (“In relying in part on the inherently close relationship between parties and their officeholders 

and candidates, the Court suggested that federal officeholders and 

candidates may value contributions to their national parties—

regardless of how those contributions ultimately may be used—in 

much the same way they value contributions to their own campaigns. As a result, the reasoning goes, contributions to national 

parties have much the same tendency as contributions to federal 

candidates to result in quid pro quo corruption or at least the appearance of quid pro quo corruption.”). 
21 

that the independence of party expenditures does not 

immunize parties from contribution limits. 

In short, the three-judge court was correct in concluding that “Citizens United’s holding about independent expenditures did not displace McConnell’s recognition of the inherent capacity of soft-money contributions 

to create a risk of quid pro quo corruption or its appearance, regardless of whether political parties ultimately 

spend those contributions independently of—or instead 

in coordination with—federal candidates and campaigns.” J.S. App. 19a–20a. The Louisiana Republicans’ 

repetition of the arguments thoroughly considered and 

convincingly rejected below does not suffice to avoid 

summary affirmance. 

III. The Louisiana Republicans’ arguments would 

have exceptionally far-reaching consequences. 

The Louisiana Republicans posit that funds used for 

any independent spending by a party committee—even 

independent spending for express candidate advocacy, 

and even independent spending by a national rather than 

a state party committee—cannot be subject to the source 

and amount limitations imposed by federal law. If their 

argument were accepted, the only party fundraising that 

could be subjected to contribution limits would be funds 

used for direct cash contributions to federal candidates 

and funds used for coordinated expenditures (which are 

treated as contributions under federal law). Because 

such contributions and coordinated spending are themselves limited, they amount to a smaller proportion of the 

parties’ overall spending. The remainder, accounting for 

the bulk of party spending, could not be subjected to 

federal contribution limits at all under the Louisiana Republicans’ theory. The return to the soft-money era 

would be complete. 
22 

Indeed, although the Louisiana Republicans purport 

not to challenge pre-BCRA laws and regulations requiring allocation of spending between hard-money and softmoney accounts for certain state-party activities affecting federal elections, those rules, too, would be unconstitutional under their theory. If contributions to fund parties’ federal election activities cannot be limited, there 

can be no basis for subjecting even part of the money 

used for them to federal contribution limits. 

Nor can any comfort be found in the Louisiana Republicans’ assertion below that they would raise funds 

for federal election activity subject to the (very high) 

contribution limits imposed by Louisiana law for contributions to the state parties. If federal limits on the funds 

used for such “independent” federal election activity 

cannot be justified under the First Amendment, state 

contribution limits applicable to fundraising for the same 

activity would be equally suspect. The natural consequence of the Louisiana Republicans’ theories is the 

eradication of all limits on contributions to parties for 

“independent” campaign activity. 

As the three-judge court recognized, that result has 

no support in this Court’s precedents. Upsetting this 

Court’s jurisprudence is not necessary to preserve the 

viability of parties or correct a “grave inequity” that denies them needed funds. J.S. 1. In the 2016 elections, the 

major parties raised well over $2 billion, including hundreds of millions of dollars raised by state parties—

significantly more than total spending by all outside 

groups combined.3

 This Court need not jettison decades 

of precedent to protect the parties. 

–––––––––––––––––––––––– 3 See https://www.opensecrets.org/parties/; https://www.open

secrets.org/outsidespending/index.php. 
23 

CONCLUSION 

The Court should summarily affirm the judgment of 

the three-judge court. 

 Respectfully submitted, 

SETH P. WAXMAN SCOTT L. NELSON

CATHERINE M.A. CARROLL Counsel of Record

WILMER CUTLER ALLISON M. ZIEVE

 PICKERING HALE PUBLIC CITIZEN 

 AND DORR LLP LITIGATION GROUP 

1875 Pennsylvania Ave. NW 1600 20th Street 

Washington, DC 20006 Washington, DC 20009 

(202) 663-6000 (202) 588-1000 

 snelson@citizen.org 

TREVOR POTTER DONALD J. SIMON

PAUL M. SMITH SONOSKY, CHAMBERS,

TARA MALLOY SACHSE, ENDRESON & 

CAMPAIGN LEGAL CENTER PERRY, LLP 

1411 K Street NW 1425 K Street NW 

Suite 1400 Suite 600 

Washington, DC 20005 Washington, DC 20005 

(202) 736-2200 (202) 682-0240 

FRED WERTHEIMER 

DEMOCRACY 21 

2000 Massachusetts Ave. NW 

Washington, DC 20036 

(202) 355-9600

Attorneys for Amici Curiae 

February 2017