NO. 12-536

_________________________________________________

In the

Supreme Court of the United States

______________________

SHAUN McCUTCHEON and

REPUBLICAN NATIONAL COMMITTEE,

Appellants,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

_____________________

On Appeal from the United States

District Court for the District of Columbia

_____________________

AMICUS CURIAE BRIEF OF THE WISCONSIN 

INSTITUTE FOR LAW & LIBERTY

IN SUPPORT OF THE APPELLANTS

______________________

Richard M. Esenberg

Counsel of Record

Thomas C. Kamenick

WISCONSIN INSTITUTE FOR LAW & LIBERTY

Bloodgood House

1139 East Knapp Street

Milwaukee, WI 53202

414-727-9455

rick@will-law.org

Counsel for Amicus 

May 13, 2013

_________________________________________________
i

Table of Contents 

Table of Contents .............................................. i 

Table of Authorities .......................................... iii 

Interest of Amicus............................................. 1 

Summary of Argument ..................................... 2 

Argument .......................................................... 3 

I. Bifurcated Scrutiny of Expenditures 

and Contributions Results in 

Inadequate Protection of Political 

Speech and Association, and 

Contributes to Distortion of the 

Political Process............................ 3

A. Expenditures Receive Full 

and Appropriate 

Constitutional Protection .. 6

B. Strong Protection for 

Independent Expenditures 

Extends to Contributions Made 

for that Purpose ............... 8

C. Contributions to Candidates, 

Parties, and Political 

Committees Do Not Receive 

Adequate Constitutional 

Protection ........................... 10

D. Binary Review Contributes 

to Distortion of the Political 

Process................................ 13
ii

II. This Court Should Abandon Differing 

Review of Expenditures and 

Contributions ................................ 16

A. The Distinction Between 

Expenditures and 

Contributions Cannot 

Support Differing 

Standards of Review .......... 16

B. Departure from Existing 

Precedent Is Warranted in 

Light of Doctrinal 

Development and Its 

Impact................................. 22

Conclusion ........................................................ 24 

 

 

 

 

 

 

 

 

 
iii

 

 

Table of Authorities 

CASES

Ariz. Free Enter. Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806 (2011) ......................7,

11, 18

Buckley v. Valeo, 424 U.S. 1 (1976) ................5, 6, 7, 

8, 9,

11, 21, 

24

California Med. Assoc. v. FEC, 453 U.S. 182, 

197 (1981).........................................................11

Citizens Against Rent Control/Coal. for 

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

(1981)................................................................11

Citizens United v. FEC, 558 U.S. 310 (2010) .7, 8, 

16, 18, 

21, 23

Clark v. Jeter, 486 U.S. 456 (1988) .................12

Colo. Republican Fed. Campaign Comm. v. 

FEC, 518 U.S. 604, 638-39 (1996) ...................17
iv

Davis v. FEC, 554 U.S. 724 (2008) ..................6, 8, 

11, 21, 

24

FEC v. Beaumont, 539 U.S. 146 (2003)...........11

FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001) ............................8, 9

11, 21

FEC v. Nat’l Conservative PAC, 470 U.S. 

480, 493 (1985) ................................................7, 18

FEC v. Nat’l Right to Work Comm., 459 U.S. 

197 (1982).........................................................11

FEC v. Wis. Right to Life, Inc., 551 U.S. 

449 (2007).........................................................6, 7, 8, 

22

Grutter v. Bollinger, 539 U.S. 306 (2003) .......21

Long Beach Area Chamber of Commerce v. 

City of Long Beach, 603 F.3d 684 

(9th Cir. 2010) .................................................. 9

Nat’l Ass’n of Retired Fed. Employees v. 

Horner, 879 F.2d 873 (D.C. Cir. 1989) ............9

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377 (2000).........................................................5, 11,

17
v

North Carolina Right to Life, Inc., v. 

Leake, 525 F.3d 274 (4th Cir. 2008)................9

Randall v. Sorrell, 548 U.S. 230 (2006)...........11

SpeechNow.org v. FEC, 599 F.3d 686 

(D.C. Cir. 2010) ................................................9, 15

Wis. Prosperity Network v. Myse, 2012 WI 27, 

339 Wis. 2d 243, 810 N.W.2d 356 ...................1

Wis. Right to Life State PAC v. Barland, 

664 F.3d 139 (7th Cir. 2011)............................8, 9

CONSTITUTIONS, STATUTES, REGULATIONS

Wis. Stat. § 11.26(4).........................................19

OTHERS

Robert P. Beard, Whacking the Political Money 

“Mole” Without Whacking Speech: Accounting for 

Congressional Self-Dealing in Campaign Finance 

Reform After Wisconsin Right to Life, 2008 

U. ILL. L. REV. 731............................................5

Joseph E. Cantor, Government and Finance 

Division, CRS Issue Brief for 

Congress, 2 (2003)............................................3

Congressional Campaigns: Half of Outside 

Spending in Campaigns Came from Groups 
vi

Not Revealing Donors, BNA MONEY & POL. 

REP., Nov. 12, 2010 ..........................................13

Erika Franklin Fowler & Travis N. Ridout, 

Advertising Trends in 2010, The Forum 11 

(2010)................................................................14

Matea Gold, 2012 Campaign Set to Cost a 

Record $6 Billion, L.A. TIMES, October 31, 

2012 ..................................................................3

Michael S. Kang, The End of Campaign 

Finance Law, 98 Va. L. Rev. 1 (2012)..............8, 13, 

14

Charles Krauthammer, The U.S. House of 

Lords?, WASH. POST, Dec. 19, 2008, at A35.....4

Bill Lueders, Baldwin-Thompson Senate 

race sets new spending record, led by outside 

groups, WisWatchBlog (Oct. 26, 2012)............14, 15

David Mark, GOING DIRTY: THE ART OF 

NEGATIVE CAMPAIGNING (2006)........................5

William P. Marshall, The Last Best Chance 

For Campaign Finance Reform, 

94 NW. U. L. REV. 335, 342–45 (2000)..............6

Douglas Martin, Stewart R. Mott, Longtime 

Patron of Liberal and Offbeat Causes, Dies 

at 70, N.Y. TIMES, June 14, 2008, at B6..........4
vii

Kerwin C. Swint, MUDSLINGERS: THE TOP 

25 NEGATIVE POLITICAL CAMPAIGNS OF ALL 

TIME (2006).......................................................5

Wisconsin Democracy Campaign, Walker , Donors 

Accused of 24 Violations of Campaign Finance 

Law, July 6, 2011, 

www.wisdc.org/pr070611.php ...........................20

 

1

Interest of Amicus 

 Amicus Wisconsin Institute for Law & 

Liberty1 is a public interest law firm dedicated to 

advancing the public interest in limited government, 

free markets, individual liberty, and a robust civil 

society. Founded in June of 2011, it has represented 

individuals and organizations seeking to speak or to 

associate with others for the purpose of speech, 

including the petitioners in Wis. Prosperity Network 

v. Myse, 2012 WI 27, 339 Wis. 2d 243, 810 N.W.2d 

356, a challenge to certain Wisconsin regulations 

restricting and burdening independent express and 

issue advocacy and certain parties seeking to 

challenge Wisconsin state aggregate contribution 

limits that cap aggregate limits at the same dollar 

amount as individual limits for state wide offices. Its 

President, General Counsel and Founder, Richard 

M. Esenberg, teaches Election Law at Marquette 

University Law School and is an Academic Advisor 

to the Center for Competitive Politics. His 

scholarship2 argues for less regulation and more 

 

1 As required by Supreme Court rule 37.6, Amicus states as 

follows. No counsel for a party authored this brief in whole or 

in part. No such counsel or party made a monetary 

contribution intended to fund the preparation or submission of 

this brief. No person other than the Amicus, its members, or 

its counsel, made such a monetary contribution. Consent has 

been given by all parties for this brief.

2 See, e.g., Richard M. Esenberg, If You Speak Up, Must You 

Stand Down: Caperton and Its Limits, 45 WAKE FOREST L. REV.

1287 (2010); Richard M. Esenberg, The Lonely Death of Public 

Campaign Financing, 33 HARV. J.L. & PUB. POL’Y 283 (2010); 

Richard M. Esenberg, Citizens United Is No Dred Scott, 16 

Nexus: Chap. J.L. & Pol’y 99 (2010-11); Richard M. Esenberg, 
2

freedom for those who wish to speak about politics 

and matters of public policy, whether individually or 

in association with others.

Amicus frequently represents persons other 

than political parties, candidates or political parties 

who wish to exercise their freedoms of speech and 

association – particularly in the face of state 

regulation. In this capacity, it seeks guidance from 

this Court that will ensure robust protection of 

expressive and associational rights in the face of 

state and local regulation. These regulations are 

often applied to speakers who are unlikely to have 

the resources to seek federal review. To protect their 

rights, clear – and not subtle – constitutional 

protection is vital. 

Summary of Argument 

 

The aggregate limits at issue here do not 

serve any legitimate interest in combating actual or 

apparent quid pro quo corruption and can be upheld 

– if at all – only by the application of a highly 

deferential approach to the regulation of direct 

contributions to candidates. The Circuit Court’s use 

of that approach to uphold aggregate limits that do 

not serve the anti-corruption objective illustrates the 

unworkability of this bifurcated form of review. 

While independent expenditures deserve every bit of 

protection they have been afforded, Amicus believes 

that the disparate treatment of contributions and 

expenditures distorts the political process and 

 

Playing Out the String: Will Public Financing of Elections 

Survive McComish v. Bennet?, 10 ELECTION L.J. 165 (2011). 
3

causes speakers to modify their messages and 

preferred forms of association. It respectfully 

requests this Court to reconsider its current 

approach and extend to all forms of political 

expression and association the constitutional 

protection that they deserve.

Argument 

 

I. 

 Bifurcated Scrutiny of Expenditures and 

Contributions Results in Inadequate 

Protection of Political Speech and Association, 

and Contributes to Distortion of the Political 

Process 

Almost 40 years of regulation, including two 

major acts of Congress and subsequent amendments, 

federal regulation and countless state and local 

counterparts have not kept money out of politics. We 

spend more than ever3 and more than ever is 

undisclosed.

4 

 

3 Total spending on all elections in the U.S. went from $540 

million in 1976 to $3.9 billion in 2000, Joseph E. Cantor, 

Government and Finance Division, CRS Issue Brief for 

Congress, 2 (2003), available at 

http://fpc.state.gov/documents/organization/28105.pdf (last 

visited May 10, 2013), to an estimated $6 billion in 2012 which 

was $700 million more than in 2008, Matea Gold, 2012 

Campaign Set to Cost a Record $6 Billion, L.A. TIMES, October 

31, 2012, available at 

http://articles.latimes.com/2012/oct/31/news/la-pn-2012-

campaign-costs-6-billion-20121031 (last visited May 13, 2013).

4 See Gold, supra n. 3 (“In all, C[enter for] R[esponsive] 

P[olitics] estimates that expenditures by outside groups will 
4

But regulation has certainly changed the 

political landscape, albeit in unintended ways. By 

permitting virtually no restrictions on expenditures 

by a candidate and relatively robust regulation of 

contributions to a candidate, see infra, Parts I.A., 

I.B., I.C., the Court’s interpretation of the First 

Amendment has created the modern phenomenon of 

the self-funded millionaire politician for whom public 

office is a prerogative of family wealth or a nice coda 

to a successful business career.5 In 1972, General 

Motors heir Stewart Mott financed an experienced 

public servant, George McGovern.6 In 1992, H. Ross 

Perot and Steve Forbes ran major self-funded 

campaigns.

Because giving money to independent groups 

offers a path of lesser resistance, money that might 

have gone to candidates now flows to independent 

expenditures. See infra, Part I.D. While independent 

expenditures can now finance express advocacy, 

bifurcated review has certainly contributed to the 

current phenomenon of sepia-toned advertisements 

urging us to call Senator Foghorn and tell him to 

stop starving children and destroying the Republic. 

Although negative campaigning is not a modern 

 

reach more than $970 million this election. That’s more than 

three times the previous record of $301 million in 2008.”).

5.See Charles Krauthammer, The U.S. House of Lords?, 

WASH. POST, Dec. 19, 2008, at A35.

6. Douglas Martin, Stewart R. Mott, Longtime Patron of 

Liberal and Offbeat Causes, Dies at 70, N.Y. TIMES, June 14, 

2008, at B6. Mott later opposed efforts at campaign finance 

regulation. Id.
5

development or solely the product of regulation,7 the 

modern independent ad—attacking in the guise of 

attempting to persuade—has certainly been 

encouraged by regulation and the desire to avoid its 

limitations. See Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377, 406–07 (2000) (Kennedy, J., dissenting) 

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

has “given us covert speech” that “mocks the First 

Amendment”). The modern “shadowy” attack ad may 

be a product of the fact that the law encourages 

money to flow away from candidates who can no 

longer control – or be as readily held responsible for 

what it buys.

In part, this is because what cannot be done 

through contribution can be done with expenditure. 

Dollars that can no longer be given to a candidate 

are given to a political party. Money that cannot be 

contributed to a party is given to an independent 

organization. What cannot be done by a political 

committee is done by a 527 or 501(c)(4) organization. 

Dollars that can no longer be spent in one way 

simply flow to a new use. At least one commentator 

has likened campaign finance reform to a game of 

“Whack-A-Mole” in which there is an endless supply 

of moles. Robert P. Beard, Whacking the Political 

Money “Mole” Without Whacking Speech: 

Accounting for Congressional Self-Dealing in 

Campaign Finance Reform After Wisconsin Right to 

Life, 2008 U. Ill. L. Rev. 731. 

 

7. See David Mark, GOING DIRTY: THE ART OF NEGATIVE 

CAMPAIGNING (2006); Kerwin C. Swint, MUDSLINGERS: THE TOP 

25 NEGATIVE POLITICAL CAMPAIGNS OF ALL TIME (2006).
6

It may be a cliché to observe that campaign 

finance reform has proved conclusively that the road 

to perdition is paved with good intentions and that 

unforeseen consequences plague the human 

condition.8 Our continuing quest for “clean” elections 

and cosmic justice in the realm of campaign finance 

brings to mind Albert Einstein’s reflections on 

insanity: “doing the same thing over and over again 

and expecting different results.” Remarking on the 

inability of years—actually decades—of reform to 

wring “excess” money out of the process, Chief 

Justice John Roberts declared, “Enough is enough.”

FEC v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 

449, 478 (2007).

A. Expenditures Receive Full and 

Appropriate Constitutional Protection 

Much of this distortion is rooted in the 

weakened constitutional protection for campaign 

contributions. This Court has consistently 

recognized that it is essential to provide robust 

constitutional protection to expenditures for the 

purpose of political advocacy – whether it be an 

individual seeking to spend his own resources on 

behalf of his candidacy, Buckley, 424 U.S. at 51-54; 

Davis v. FEC, 554 U.S. 724, 738-44 (2008), a 

 

8 See William P. Marshall, The Last Best Chance For 

Campaign Finance Reform, 94 NW. U. L. REV. 335, 342–45

(2000) (listing examples of unintended consequences of reform: 

a decline in grassroots campaigning, the rise of “soft money” for 

“party building,” issue ads, independent ads, and a substantial 

increase in the time that must be devoted to fundraising and 

bundling).
7

candidate deciding how much lawfully raised money 

to spend on her own campaign, Buckley, 424 U.S. at 

54-58; Ariz. Free Enter. Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806, 2818-19 (2011), or 

independent individual groups seeking to speak at 

the time of an election. WRTL II, 551 U.S. at 481-82; 

Buckley, 424 U.S. at 47-48. While the latter 

protection was limited to issue advocacy, there is 

now robust protection for expenditures expressly 

advocating for the election or defeat of candidates. 

Citizens United v. FEC, 558 U.S. 310, 318-19 (2010); 

FEC v. Nat’l Conservative PAC (“NCPAC”), 470 U.S. 

480, 493 (1985) (invalidating expenditures by 

political action committees to further the election of 

publicly financed candidates for President).

 It is difficult to see how it could be otherwise.

Money may not be speech, but effective speech 

has nearly always required the freedom to amass 

and spend the resources necessary to communicate 

one’s message. A right to speak freely limited to the 

ability to stand on a street corner and shout at 

passing cars would be an empty right. See NCPAC, 

470 U.S. at 493 (limitation of expenditures to $1,000 

“much like allowing a speaker in a public hall to 

express his views while denying him the use of an 

amplifying system”). Free speech is incompatible 

with restrictions on the right of an individual or 

association to hear, to speak, and to use information, 

Citizens United, 558 U. S. at 339, and this Court has 

made quite clear that the First Amendment provides 

robust protection for expenditures to convey a 

political message. They are subject to strict scrutiny. 

See, e.g., Bennett, 131 S. Ct. at 2817–18 (collecting 
8

cases); Citizens United, 558 U.S. at 335-39; Davis,

554 U.S. at 740–44; FEC v. Colo. Republican Fed.

Campaign Comm., 533 U.S. 431, 441–42 (2001); 

Buckley, 424 U.S. at 55–56.

For this reason, as the Seventh Circuit 

recently noted, expenditure limits “usually flunk.” 

Wis. Right to Life State PAC v. Barland, 664 F.3d 

139, 153 (7th Cir. 2011). This Court has now firmly 

established that only the interest in preventing 

actual or apparent quid pro quo corruption can 

justify restrictions on the ability to raise and spend 

money, Citizens United, 558 U.S. at 360-61; see 

Michael S. Kang, The End of Campaign Finance 

Law, 98 VA. L. REV. 1, 4 (2012) (“Citizens United 

sharply reversed this expansion [of the types of 

corruption government had a compelling interest in 

discouraging] and narrowed the definition of 

corruption by limiting it to the risk of quid pro quo 

transactions involving campaign contributions 

directly to candidates for office.”). It has now made 

clear that expenditures that are truly independent, 

i.e., not coordinated with a candidate, do not 

implicate that interest, Citizens United, 558 U.S. 

360-61; WRTL II, 551 U.S. at 478-79. Expenditure

limits ought to “flunk.”

B. Strong Protection for Independent 

Expenditures Extends to Contributions 

Made for that Purpose 

Although not yet addressed by this Court, a 

necessary corollary is that contributions to entities 

that intend to make independent expenditures may 

not be restricted. Although limits on contributions to 
9

political candidates and committees have 

traditionally been subject to less rigorous “exacting” 

scrutiny, contributions, as well as expenditures, “fall 

within the First Amendment’s protection of speech 

and political association.” Colo. Republican Fed. 

Campaign Comm., 533 U.S. at 437; Buckley, 424 

U.S. at 16-17.

Restricting the ability of persons to contribute 

money to associations that are independent of a 

candidate to make expenditures that will not be 

coordinated with a candidate does not serve the anticorruption interest and, because that interest is the 

only one that will justify restrictions, few, if any, 

restrictions ought to be permitted – certainly not 

limits on what can be spent. As the D.C. Circuit has 

observed, “something ... outweighs nothing every 

time.” SpeechNow.org v. FEC, 599 F.3d 686, 695 

(D.C. Cir. 2010) (quoting Nat’l Ass’n of Retired Fed. 

Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 

1989)). Every Circuit Court to have addressed the 

issue in the aftermath of Citizens United has so 

concluded. See Wisconsin Right to Life State PAC,

664 F.3d at 154; Long Beach Area Chamber of 

Commerce v. City of Long Beach, 603 F.3d 684, 687 

(9th Cir. 2010); SpeechNow.org, 599 F.3d at 694-695;

see also North Carolina Right to Life, Inc., v. Leake, 

525 F.3d 274, 293 (4th Cir. 2008) (pre-dating 

Citizens United).

Thus, in the current campaign finance 

landscape, a person is free to spend his or her own 

resources to advocate for or against the election of a 

candidate. This freedom extends to corporations. 

Both natural persons (and presumably corporations) 
10

are free to contribute to a corporation or other form 

of association – in other words, they may freely 

associate with others – for the purpose of spending 

money to advocate for or against the election of a 

candidate. Let us hypothesize a politically active

citizen - Mary Smith of Virginia – who wants to see a 

Democratic majority in the U.S. Senate. She may 

spend whatever she wants to speak in favor of her 

own election. She may also spend whatever she 

wishes to promote the re-election of Senator Mark 

Warner (D-Va.). She may give whatever she wants to 

advocacy organization to spend money advocating 

the re-election of Senator Warner. She may do these 

things, if she so desires and has the resources, for 

every Democratic candidate for Senator in the 

country. 

But if Mary Smith, believing that candidates 

ought to control and be responsible for campaign 

messaging, wishes to give directly to Senator 

Warner’s campaign or that of other Democratic 

candidates, she faces a very different legal 

environment.

C. Contributions to Candidates, Parties, 

and Political Committees Do Not 

Receive Adequate Constitutional 

Protection 

What Ms. Smith may not do is give an amount 

in excess of the base contribution limit to Senator 

Warner or any other candidate. Restrictions on 

contributions to a candidate are subjected to less 

rigorous “exacting” scrutiny, requiring only that 

limitations be “closely drawn” to serve a “sufficiently 
11

important interest.” Buckley, 424 U.S. at 25; see also 

Ariz. Free Enter., 131 S. Ct. at 2817; Davis, 554 U.S. 

at 737; Randall v. Sorrell, 548 U.S. 230 (2006); Colo. 

Republican, 533 U.S. at 446. 

Applying this less-demanding standard of 

review, contribution limits usually do not flunk. See, 

e.g., FEC v. Beaumont, 539 U.S. 146, 159–60 (2003) 

(upholding restrictions on campaign contributions 

made by an advocacy corporation); Nixon v. Shrink 

Mo. Gov’t PAC, 528 U.S. 377, 381–82 (2000) 

(upholding state campaign contribution limits); FEC 

v. Nat’l Right to Work Comm., 459 U.S. 197, 209–10 

(1982) (upholding restrictions on solicitations by a 

corporate PAC); California Med. Assoc. v. FEC, 453 

U.S. 182, 197 (1981) (upholding limitations on 

contributions to multi-candidate committees); 

Buckley, 424 U.S. at 29 (upholding limitations on the 

amount of contributions).

Of course, there have been exceptions. In 

Citizens Against Rent Control/Coal. for Fair Hous. v. 

City of Berkeley, 454 U.S. 290 (1981), this Court 

invalidated limits on contributions to committees 

that supported or opposed ballot measures. In

Randall v. Sorrell, 548 U.S. 230 (2006), the plurality 

invalidated Vermont’s contributions as too low 

because they “would reduce the voice of political 

parties in Vermont to a whisper.” 548 U.S. at 253 

(Breyer, J., joined by Roberts, C.J., and Alito, J).

9

 

9 Justice Kennedy concurred in the judgment alone, expressing 

“skepticism regarding th[e] system and its operation,” 548 U.S. 

at 265 (Kennedy, J., concurring in the judgment), while 

Justices Scalia and Thomas would have struck down the limits 
12

Of course, exacting scrutiny is not akin to 

rational basis review. See Clark v. Jeter, 486 U.S. 

456, 461 (1988). It is heightened scrutiny, but it is 

inadequate where the First Amendment is 

concerned. It risks creating a form of “binary” review 

where too much turns on whether a regulation is 

characterized as a restriction on contributions or a 

restriction on expenditures. 

Although it should not, “exacting scrutiny” 

can, in practice, result in review that is exacting by 

description, but deferential in practice. Restrictions 

on contributions generally do not “flunk” even when 

they should. 

The decision below is a perfect example. 

There is no need for Amicus to repeat the thorough 

analysis of the Appellants’ merits brief. See, e.g., 

Brief for Appellant Shaun McCutcheon, 5-11, 35-54; 

Brief on the Merits for Appellant Republican 

National Committee, 26-43.

Because aggregate limits cannot result in a 

single contribution exceeding the limit set by 

Congress, they do not directly serve the anticorruption interest. Because they restrict the 

number of candidates with whom a contributor may 

associate, they directly restrict the exercise of 

associational rights in a way that single contribution 

limits do not. Although they are claimed to serve an 

“anti-circumvention” interest, the circumvention 

scenarios that they might prevent are remote, and 

 

by overruling Buckley, id. at 273 (Scalia, J. concurring in the 

judgment).
13

almost certainly illegal. No proof of the likelihood of 

circumvention was required. The government offered 

no evidence that they were likely or even possible 

and the district court itself acknowledged that the 

anti-circumvention rationale was predicated on an 

“unlikely” scenario that it could only “imagine.” Even 

if such scenarios were more than conjecture, they 

could be better prevented by regulatory responses 

that are more narrow and direct. No serious 

consideration of alternatives was undertaken. 

To be sure, exacting scrutiny requires a closer 

look but, as explained below, lower courts – and 

speakers – would benefit from a direction to apply 

strict scrutiny across the board.

D. Binary Review Contributes to 

Distortion of the Political Process 

As noted above, the result of this legal regime 

is to move money from contributions to candidates to 

expenditures. As Professor Michael Kang recently 

pointed out, almost $300 million of the 2010 total 

campaign spending was spent by outside groups,10

up from less than $75 million in 2006. Michael S. 

Kang, The End of Campaign Finance Law, 98 VA. L.

REV. 1, 37 (2012). This amounts to an increase of 

168% over 2008 in House races and 44% in Senate 

races. Id. at 38. The bifurcated review of 

expenditures and contributions creates a “reverse 

 

10 Congressional Campaigns: Half of Outside Spending in 

Campaigns Came from Groups Not Revealing Donors, BNA

MONEY & POL. REP., Nov. 12, 2010.
14

hydraulics” in which money flows back to where it 

had originally been steered away from. Id. at 40-43.

In Amicus’ home state of Wisconsin, the 

recent Senate race between Democrat Tammy 

Baldwin and Republican Tommy Thompson was 

dominated by independent expenditures. In a report 

published several days before the election, it was 

revealed that, while Ms. Baldwin had spent $8.5M

and Mr. Thompson had spent $3.8M, independent 

expenditures had been almost three times higher at 

$ 30.8 million.11

While this may diminish the risk of quid pro 

quo corruption, it artificially distorts the political 

process. The consequence can be campaigns that are

less about the candidates than about the messaging 

preferred by independent organizations. The latter –

because they can’t be attributed to a candidate – are 

not disciplined by the need for anyone to stand 

behind them. They are, as a result, far more likely to 

be negative and corrosive. 

Independence comes at a cost. Independent 

spenders are less likely to be accountable. 

Candidates have a reputation to protect and can be 

held accountable by voters for what they say. While 

permanent advocacy organizations which must 

retain financial support and credibility may also 

 

11 Bill Lueders, Baldwin-Thompson Senate race sets new 

spending record, led by outside groups, WisWatchBlog (Oct. 26, 

2012) (available at 

http://www.wisconsinwatch.org/2012/10/26/baldwin-thompsonsenate-race-sets-new-spending-record-led-by-outside-groups/) 

(last visited May 10, 2013).
15

have accountability concerns, independent 

organizations with generic and malleable monikers 

(not to mention anonymous donors) are often formed 

for purposes of a single election. There is evidence

that independent ads are far more likely to be 

negative than candidate ads. See Erika Franklin 

Fowler & Travis N. Ridout, Advertising Trends in 

2010, THE FORUM 11 (2010) (analyzing advertising 

data).

In an analysis conducted by the Wisconsin 

Center for Investigative Journalism, roughly 90 % of 

the independent spending in the Baldwin-Thompson 

Senate race – spending that was several times that 

of the candidates’ – went for attack ads.12

The point is not that independent 

expenditures and communications are bad – they 

are, to the contrary, constitutionally protected 

communications and a vital part of our democracy

Because expenditures are independent, they do not 

raise concerns about corruption or even the 

appearance of corruption. As the D.C. Circuit has 

observed, “there is no corrupting ‘quid’ for which a 

candidate might in exchange offer a corrupt ‘quo.’” 

SpeechNow.org v. FEC, 599 F.3d 686, 694-95 (D.C. 

Cir. 2010).

It is that the interplay between regulation and 

constitutional doctrine compels people to 

communicate in ways that they might otherwise 

choose not to do. The balance between candidate and 

independent speech is unnaturally altered. It is one 

 

12 Id.
16

thing for people to decide to spend money 

independently if that is what they wish to do. It is 

another for this to occur because they have no other 

way to lawfully spend as much as they would prefer 

to do. When legal rules cause people who wish to 

pool their resources and participate in the political 

resources to engage in avoidance behaviors, we 

ought to be concerned. Political speech is “ingrained” 

in our culture and Americans are hard wired to 

express themselves. Citizens United v. FEC, 558 

U.S. 310, 364 (2010). They ought to be able to do so 

in an environment that is not artificially contrived to 

force supporters to speak in one way and push 

candidates to the side. Id. (“Our Nation’s speech 

dynamic is changing, and informative voices should 

not have to circumvent onerous restrictions to 

exercise their First Amendment rights.”).

II.

This Court Should Abandon Differing Review 

of Expenditures and Contributions 

 

A. The Distinction Between Expenditures 

and Contributions Cannot Support 

Differing Standards of Review 

The distinction between expenditures and 

contributions is not sufficiently robust to warrant 

this binary form of review. In particular, it is simply 

not the case that contributions qua contributions are 

sufficiently different from expenditures to warrant a 

differing level of review. As Justice Thomas, for 

example, has argued, whether one chooses to 

participate by expenditure or contribution, there is 
17

“usually some go-between that facilitates the 

dissemination of the spender’s message—for 

instance, an advertising agency or a television 

station” such that calling a contribution “‘speech by 

proxy’ . . . does little to differentiate it from an

expenditure.” Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377, 413 (2000) (Thomas, J., dissenting),

quoting Colo. Republican Fed. Campaign Comm. v. 

FEC, 518 U.S. 604, 638-39 (1996) (Thomas, J., 

concurring in judgment and dissenting in part)). Nor 

is it correct in Justice Thomas’s view to state that a 

contribution to a candidate does not constitute 

communication by the donor who, in contributing, 

endorses and facilitates a message (that of his 

candidate) that he prefers. A larger contribution 

communicates “more” in the same way as a larger 

expenditure. Buckley’s distinction between 

expenditures and contributions, in his view, “ignores 

the distinct role of candidate organizations as a 

means of individual participation in the Nation’s 

civic dialogue.” Id. at 417.

For example, our hypothetical Mary Smith, if 

she wishes to produce a communication for broadcast 

or on-line distribution, will probably engage someone 

to produce it. That she associates with another to 

craft a message does not make the resulting 

communication any less her own or diminish the 

constitutional protection to which she is entitled. No 

one is constitutionally permitted to tell her that she 

has spent “enough.” While the expressive and 

associational value of a contribution may differ in 

some ways, they don’t differ enough to warrant 

differing levels of scrutiny.
18

She has engaged in an expressive act. By 

choosing to contribute, she must “obviously like the 

message . . . and want to add [her] voice[] to that 

message.” FEC v. Nat’l Conservative PAC, 470 U.S. 

480, 495 (1985). Just as the third parties in Bennett, 

a restriction on “how much” expression that she is 

permitted or a burden imposed on her decision to 

support “too much” speech is an imposition that 

ought to surmount strict scrutiny.

In Citizens United, this Court recognized that 

preventing the speech of incorporated associations 

muffled voices by preventing corporations from 

“presenting both facts and opinions to the public.” 

558 U.S. at 355. In Bennett, it recognized that 

“rescue funding” offered to publicly financed 

candidates in response to constitutionally protected 

speech forced speakers to alter their message or 

refrain from speaking to avoid triggering these 

matching fund provisions. This, it concluded, was a 

constitutional burden calling for strict scrutiny. Ariz. 

Free Enter. Club’s Freedom Club PAC v. Bennett, 

131 S. Ct. 2806, 2819-20 (2011).

Contribution restrictions may also prevent or 

diminish speech by making it more difficult for 

candidates to raise the resources necessary to 

effectively communicate, thus “muffling” their 

voices. While Randall was certainly correct in 

holding that contribution limits which were so low as 

to silence challengers was unconstitutional, this 

certainly is not the only way in that restrictions on 

contributions may limit core political speech in a 

way that merits the most careful form of review. 
19

Given the differing ways in which contribution 

restrictions impact expressive and associational 

interests and the greater possibility that the anticorruption interest will be served, limits on the 

amount that one may give directly to a candidate for 

public office may more often survive strict scrutiny 

than limits on expenditures do. For example, the 

application of contribution limits to bequests may 

not implicate anti-corruption concerns in the same 

ways. Prohibitions on contributions by corporations 

or persons with certain relationships to the 

government as well as limitations on when 

contributions may be made may constitute more 

substantial burdens than limits on the size of 

contributions. As noted above, limits on the size of 

contributions may distort and muffle speech in ways 

less severe than present in Randall but still of 

critical constitutional concern. In different 

circumstances, the strength of the interest in 

preventing quid pro quo corruption will vary.

Even on the issue before the Court, more or 

less onerous burdens on speech can be presented by 

aggregate contribution limits. For example, in 

Amicus’ home state of Wisconsin, the aggregate limit 

for contributions to candidates and committees is $ 

10,000. Wis. Stat. § 11.26(4). This is equal to the 

maximum contribution that can be made to a single 

candidate for state-wide office. Thus, a person who 

wished to contribute the maximum amount to 

Governor Scott Walker can make no other 

contributions – not to another candidate for state 
20

wide office nor, for that matter, to his local 

alderman.13

When contribution limits can impose those

kinds of burden on expressive and associational 

rights, it is essential to make clear that only strict 

scrutiny applies – not only so that aggrieved parties 

will win their particular cases, but so that legislators 

and regulators will be apprised of the critical 

constitutional interests at stake. 

Seen in this way, the expressive and 

associational interests burdened by contribution 

restrictions are not materially different than those 

impaired by expenditure limits. To borrow the 

phrasing of the panel in SpeechNow.org, both 

burden constitutional rights in a way that 

constitutes “something” and, upon closer 

examination, that “something” does not differ in any 

material way.

To be sure, contributions may – but will not 

always – present a risk of quid pro quo corruption 

that is not present with expenditures (although the 

aggregate limits at issue here do not do so). The

“something” that is burdened by contribution limits

may be less likely to encounter a posited state 

interest that amounts to “nothing.” But those 

differences ought to be addressed in the application 

 

13 The limits result in a biannual ritual of complaints filed by 

advocacy organizations against campaigns and individuals who 

inadvertently exceeded the limit – often by a small amount. 

See, e.g., Wisconsin Democracy Campaign, Walker, Donors 

Accused of 24 Violations of Campaign Finance Law, July 6, 

2011, www.wisdc.org/pr070611.php (last visited May 13, 2013).
21

of a standard requiring robust constitutional 

protection rather than a regime of bifurcated review 

in which the case turns largely on the way in which 

a regulatory scheme is characterized. The old law 

school adage that such review is “strict in theory, but 

fatal in fact” is true in general, but often proves to be 

false in the particular. See, e.g., Grutter v. Bollinger, 

539 U.S. 306 (2003) (upholding government racial 

discrimination against strict scrutiny).

The reason is simple. Restrictions on 

contributions limit the ability of individuals to 

associate with candidates for public office and to 

participate in the political process. At the same time, 

limitations restrict the ability of candidates –

particularly the unwealthy, unknown, and unincumbent – to amass the resources necessary to 

communicate. Even if one believes that an anticorruption interest might justify limits on what can 

be contributed to a candidate or committee, there is 

no doubt that what we are dealing with is core 

political speech where First Amendment concerns 

are at their height. See Citizens United, 558 U.S. at 

335-39; Davis v. FEC, 554 U.S. 724, 740-44 (2008); 

FEC v. Colo. Republican Fed. Campaign Comm., 533 

U.S. at 441–42; Buckley v. Valeo, 424 U.S. 1, 55-56

(1976).

Strict scrutiny ought to be the standard. 

Under the Court’s current approach, the 

presumptions are in favor of regulation and against 

the expressive and associational interests implicated 

by whatever might be characterized as a 

“contribution.” But in this core area of First 

Amendment rights, it is far better that the 
22

presumption be in favor of speech. “Where the First 

Amendment is implicated, the tie goes to the 

speaker, not the censor.” WRTL II, 551 U.S. 449, 474 

(2007) (Roberts, C.J.).

B. Departure from Existing Precedent Is 

Warranted in Light of Doctrinal 

Development and Its Impact 

As appellants point out, it is certainly possible 

to dispose of this case by correcting error. This Court 

could conclude that the Circuit Court improperly 

applied the “exacting scrutiny” standard. This is a 

case in which “something” – the expressive and 

associational rights of those who support “too many” 

candidates and committees at non-corrupting levels 

– is met by nothing.

But Amicus believes that, in the critical area 

of political speech – where First Amendment 

protections are at their height – more is required.

We are aware of the value that the Court 

properly places on stare decisis and we cannot say 

anything about the reasons to adhere to or depart 

from precedent that is not well known to the Justices 

of this Court. Stare decisis is at its weakest on 

constitutional questions. WRTL II, 551 U.S. at 500 

(Scalia, J., concurring) (“This Court has not 

hesitated to overrule decisions offensive to the First 

Amendment . . . .”). As Chief Justice Roberts

recognized in Citizens United, stare decisis is not an 

“inexorable command” or a “mechanical formula of 

adherence to the latest decision,” but a “principle of 

policy” requiring a “sober appraisal of the 
23

disadvantages of the innovation” against “those of 

the questioned case.” 558 U.S. at 378 (Roberts, C.J., 

concurring).

As in Citizens United, no reliance interests 

are at stake here where adjustment of the level of 

scrutiny accorded contribution restrictions will, if 

dispositive in any particular case, merely permit 

people to act where they have been unable to act. Id.

at 365. Permissible regulations have been steadily 

eroded to constitutional challenge. The relatively 

unfettered ability to spend money for issue advocacy 

has become – quite properly – the relatively 

unfettered ability to spend money for express 

advocacy. The relatively unfettered ability to spend 

one’s own money for independent communications 

has expanded – quite properly – to the relatively 

unfettered ability to contribute money for 

independent communications. Arguments that free 

speech must be compromised to “level the playing 

field” or serve some broader notion of “corruption” 

have been considered and found wanting. To 

continue to subject contributions to those who are 

actually running for office to a lesser form of 

scrutiny can only, in light of these developments, 

distort the political process to no great end.

Disparate scrutiny of contributions and 

expenditures has been predicated on the notion that 

restrictions on the former are not distorting, i.e., 

that they do not materially “undermine to any 

material degree the potential for robust and effective 

discussion of candidates and campaign issues by 

individual citizens, associations, the institutional 
24

press, candidates, and political parties.” Buckley, 

424 U.S. at 28-29.

Certainly candidates still raise money. But 

experience has shown that the differing scrutiny of 

one mode of expression and association can distort 

the process and result in a misallocation of 

resources. Privileging contributions over 

expenditures by a priori designation of a differing 

form of scrutiny contributes to distortion of the 

political process. 

In Davis, Justice Alito considered the 

argument that regulation that has made it harder 

for those who are not wealthy to raise funds and 

distorted “the normal relationship between a 

candidate’s financial resources and the level of 

popular support for his candidacy.” 554 U.S. at 743.

In that case, the Court concluded that the answer to 

any such distorting effect was to eliminate or raise 

those limits rather than further restrict speech. Id.

In the same vein, that distortion ought not be 

permitted unless it serves a compelling interest. We 

are talking about the First Amendment in its most 

critical context. We are talking about democracy and 

core political speech.

Enough is enough.

CONCLUSION 

 For the foregoing reasons, Amicus Wisconsin 

Institute for Law & Liberty respectfully requests 

that this Court hold that restrictions on 
25

expenditures and contributions ought to be subjected 

to strict scrutiny and reverse the decision below.

Respectfully submitted,

Richard M. Esenberg

Counsel of Record

Thomas C. Kamenick

WISCONSIN INSTITUTE FOR LAW & LIBERTY

Bloodgood House

1139 E. Knapp Street

Milwaukee, WI 53202

414/727-9455 telephone

rick@will-law.org

Counsel for Amicus

May 13, 2013