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 of the Cato Institute as Amicus Curiae in 

Support of Plaintiffs-Appellants 

 

ILYA SHAPIRO

 Counsel of Record

SOPHIE COLE

Cato Institute 

1000 Mass. Ave., N.W. 

Washington, D.C. 20001 

(202) 842-0200 

ishapiro@cato.org 
i 

QUESTIONS PRESENTED 

(1) Whether the biennial limits on campaign 

contributions to non-candidate committees, 2 U.S.C. 

441a(a)(3)(B), violate the First Amendment; and, 

more broadly, 

(2) Whether the distinction that this Court drew 

in Buckley v. Valeo, 424 U.S. 1 (1976), between limits 

on campaign expenditures (unconstitutional) and 

contributions (constitutional under certain 

circumstances), respectively, is still tenable. 
ii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED........................................ i 

TABLE OF AUTHORITIES ...................................... iv 

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

SUMMARY OF ARGUMENT .................................... 1 

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

I. THE FIRST AMENDMENT BROADLY 

PROTECTS POLITICAL SPEECH ..................... 4 

A. The Founders Envisioned Campaigns With 

Open Debate and Uninhibited Political 

Expression......................................................... 6 

B. The Buckley Court Correctly Held That 

Campaign Spending Is a Form of Speech 

Protected by the First Amendment and 

Foresaw the Dangers of Even Those 

Contribution Limits It Approved ..................... 8 

II. BUCKLEY’S DISTINCTION BETWEEN 

CONTRIBUTIONS AND EXPENDITURES IS 

UNWORKABLE AND DESTABILIZES OUR 

CAMPAIGN FINANCE SYSTEM ........................ 9 

A. The Buckley Distinction Is Untenable and 

Unworkable ....................................................... 9 

B. The Buckley Distinction Has Destabilized 

Our Campaign Finance System ..................... 13 

C. Eliminating the Buckley Distinction Would 

Both Energize Our Democracy and Reduce 

Corruption....................................................... 16 
iii 

III. STARE DECISIS SHOULD NOT SAVE THE 

BUCKLEY DISTINCTION ................................. 17 

A. Stare Decisis Means Following The Law, 

Not Mechanically Preserving Every 

Precedent or Maintaining Erroneous 

Decisions.......................................................... 17 

B. Abandoning the Buckley Distinction Would 

Be Consistent with Stare Decisis ................... 23 

CONCLUSION.......................................................... 25
iv 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Agostini v. Felton, 

521 U.S. 203 (1997).............................................. 21 

Buckley v. Valeo, 

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

Burnet v. Coronado Oil & Gas Co., 

285 U.S. 393 (1932).............................................. 21 

Calif. Med. Assn. v. FEC, 

 453 U.S. 182 (1981)............................................... 9 

Citizens United v. FEC, 

 558 U.S. 310 (2010)................................6, 7, 14, 24 

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

 518 U.S. 604 (1996)....................................3, 10, 11 

FEC v. Nat’l Conservative Pol. Action Comm., 

 470 U.S. 480 (1985)......................................... 11-12 

FEC v. Wisc. Right to Life, Inc. (“WRTL II”), 

551 U.S. 449 .............................................. 21-22, 24 

James B. Beam Distilling Co. v. Georgia, 

501 U.S. 529 (1991)......................................... 19-20 

McConnell v. FEC, 

540 U.S. 93 (2003)........................................... 10-11 
v 

McCutcheon v. FEC, 

893 F. Supp. 2d 133 (D.D.C. 2012)...................... 12 

Mills v. Alabama, 

384 U.S. 214 (1966)............................................ 3, 7 

Montejo v. Louisiana, 

556 U.S. 778 (2009).............................................. 24 

N.Y. Times Co. v. Sullivan, 

376 U.S. 254 (1964)................................................ 5 

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000).............................................. 10

In re Osborne, 

76 F.3d 306 (9th Cir. 1996)............................. 20-21 

Patterson v. McClean Credit Union, 

 491 U.S. 164 (1989).........................................20, 21 

Payne v. Tennessee, 

501 U.S. 808 (1991).........................................19, 21 

Planned Parenthood of Se. Pa. v. Casey, 

505 U.S. 833 (1992).............................................. 23 

Roth v. United States, 

354 U.S. 476 (1957) ........................................... 1, 5

Smith v. Allwright, 

321 U.S. 649 (1944).............................................. 23 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010).............................. 14 
vi 

CONSTITUTIONAL PROVISIONS 

U.S. Const. art. I, section 4 ........................................ 7 

U.S. Const. art. II, section 1 ....................................... 7 

U.S. Const. amend. I..........................................passim

U.S. Const. amend. X.................................................. 4 

OTHER AUTHORITIES 

Lillian R. BeVier, Money and Politics: The First 

Amendment and Campaign Finance Reform, 

73 Cal. L. Rev. 1045 (1985).................................. 12 

William Blackstone, 1 Commentaries (Univ. of 

Chicago Press 1979) (1765)............................ 18, 19 

John J. Coleman, The Benefits of Campaign 

Spending, Cato Institute Briefing Paper No. 84 

(September 4, 2003) ....................................... 16, 17 

John Coleman, The Distribution of Campaign 

Spending Benefits across Groups, 

 63 J. Pol. 916 (2001)............................................. 16 

John Coleman & Paul F. Manna, Congressional 

Campaign Spending and the Quality of 

Democracy, 62 J. Pol. 757 (2002)......................... 16 

Cong. Research Serv., Supreme Court Decisions 

Overruled by Subsequent Decision, (1992).......... 22 
vii 

Dhammika Dharmapala & Filip Palda, Are 

Campaign Contributions a Form of Speech? 

Evidence from Recent U.S. House Elections, 

112 Pub. Choice 81 (July 2002) ...................... 16-17 

The Federalist No. 10 (James Madison) (Garry 

Wills ed. 2003)........................................................ 6 

The Federalist No. 51 (James Madison) (Garry 

Wills ed. 2003) ....................................................... 6 

Thomas L. Gais, Campaign Contribution Limits: 

Cure or Curse?, 22 Regulation 42 (1999) ............ 13 

Matthew Hale, The History of the Common Law of 

England (Charles M. Gray ed. 1971) (1820).. 17-18 

James Kent, 1 Commentaries on American Law

(12th ed. 1989) (O.W. Holmes Jr. ed. 

 1873) ......................................................... 18, 19, 23 

Raymond La Raja, Small Change: Money, 

Political Parties, and Campaign Finance 

Reform (2008)....................................................... 15 

Burt Neuborne, The Supreme Court and Free 

Speech: Love and a Question, 

 42 St. Louis U. L.J. 789 (1998)................... 9, 13-14 

David M. Rabban, Free Speech in Its Forgotten 

Years (1997)............................................................ 7

John Samples, Move to Defend: The Case against 

the Constitutional Amendments Seeking to 

Overturn Citizens United, Cato Institute Policy 

Analysis No. 724 (April 23, 2013).......................... 5
viii 

John Samples, The Fallacy of Campaign Finance 

Reform (2006)................................................. 12, 17 

Ilya Shapiro & Caitlyn McCarthy, 

So What If Corporations Aren’t People?, 

 44 J. Marshall L. Rev. 701 (2011) ......................... 6 

Ilya Shapiro & Nicholas Mosvick, 

 Stare Decisis after Citizens United: 

 When Should Courts Overturn Precedent, 

 16 Nexus: Chap. J. Pub. Pol’y 121 (2011) ........... 20 

Geoffrey R. Stone, Is Money Speech?, 

 Huffington Post (February 5, 2012) ................... 7-8
1 

 

INTEREST OF AMICUS CURIAE1

The Cato Institute was established in 1977 as a 

nonpartisan public policy research foundation 

dedicated to advancing the principles of individual 

liberty, free markets, and limited government. 

Cato’s Center for Constitutional Studies was 

established in 1989 to help restore the principles of 

limited constitutional government that are the 

foundation of liberty. Toward those ends, the Cato 

Institute publishes books and studies, conducts 

conferences and forums, and publishes the annual 

Cato Supreme Court Review, and files amicus briefs. 

The present case concerns Cato because it involves 

arbitrary and unjustified restrictions on political 

speech, the protection of which is at the core of the 

First Amendment. 

SUMMARY OF ARGUMENT 

The First Amendment broadly protects political 

expression in order to “assure [the] unfettered 

interchange of ideas for the bringing about of 

political and social changes desired by the people.” 

Roth v. United States, 354 U.S. 476, 484 (1957). 

Campaign contributions and expenditures facilitate 

such interchanges and are thus vital to our 

democracy. Yet our current campaign finance 

restraints unconstitutionally stifle political speech 

and inhibit the unfettered interchange of ideas. 

1 Pursuant to Rule 37.2(a), all parties were timely notified 

of and have consented to the filing of this brief. In accordance 

with Rule 37.6, counsel affirms that no counsel for any party 

authored this brief in whole or in part and that no person or 

entity other than amicus made a monetary contribution to its 

preparation or submission. 
2 

While someone can spend an unlimited amount on 

his own campaigns, the amount he can donate to 

political parties, committees, and candidates is 

strictly limited by contribution limits that were 

upheld against constitutional challenge in Buckley v. 

Valeo, 424 U.S. 1 (1976). 

Buckley correctly held that the spending money, 

whether in the form of contributions or expenditures, 

is a form of speech protected by the First 

Amendment. Buckley, 424 U.S. at 21. The Court, 

however, only treated caps on campaign 

expenditures, and not caps on contributions, as 

restrictions upon political speech, reasoning that 

“while contributions may result in political 

expression if spent by a candidate or an association 

to present views to the voters, the transformation of 

contributions into political debate involves speech by 

someone other than the contributor.” Id. The Court 

has since abandoned the concept of “speech by proxy” 

generally, yet the distinction between contributions 

and expenditures remains. That distinction has been 

the target of persistent, cogent criticism and its 

underlying logic repudiated in subsequent decisions. 

Even in Buckley itself, Chief Justice Burger 

argued that contributions and expenditures are both 

core political speech and “two sides of the same First 

Amendment coin.” Id. at 241 (Burger, C.J., 

concurring in part and dissenting in part). 

Restrictions on both violate the Constitution. Id. at 

241-42. Justice Thomas has also attacked the 

distinction as illogical and argued that both 

contribution and expenditure limits implicate core 

First Amendment values. Money contributes to the 

political debate whether it is spent independently or 

through a candidate or political party. Colo. Fed. 
3 

Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 

604, 636-67 (1996) (Thomas, J., concurring in part 

and dissenting in part). Justice Thomas asserted 

that the Buckley framework should be abandoned 

and replaced with a strict scrutiny test for both 

contributions and expenditure limits. Id. at 639. 

Buckley’s contribution/expenditure distinction 

also causes various practical issues commonly 

criticized in our campaign finance system. Striking 

down limits on spending, while upholding limits on 

donations, creates a system where politicians spend 

an inordinate amount of time fundraising as opposed 

to designated legislative activities. Furthermore, the 

flow of money has been pushed away from political 

parties and official associations and towards 

unelected advocacy groups, leaving the national 

parties with a distinct lack of “resources necessary 

for effective advocacy.” Buckley, 424 U.S. at 21. Most 

importantly, the constitutional rights of U.S. citizens 

to engage in untempered political speech and 

expression is being infringed. Limitations on the 

amount of money an individual can contribute to the 

political party, committee, or candidate of his choice 

unconstitutionally restrains the freedom of political 

speech. There is “practically universal agreement” 

that the central purpose of the Speech and Press 

Clauses of the First Amendment was “to protect the 

free discussion of governmental affairs.” Mills v. 

Alabama, 384 U.S. 214, 218 (1966). Since money is 

speech, contribution limits effectively allow speech 

but only up to a government-approved amount. 

Nor does stare decisis require preserving 

contribution limits, including the aggregate biennial 

limits being challenged in this case. The Buckley

distinction is of relatively recent constitutional 
4 

vintage and has produced an arbitrary, irrational, 

and increasingly unworkable campaign finance 

system, with no reliance interests weigh against 

overruling it. Stare decisis is an important principle 

vital to our legal system but it is not a binding 

command by which a court never overrules 

precedent. Instead, it is a prudential policy that—

especially in the context of constitutional 

interpretation—doesn’t prevent overruling decisions 

offensive to the First Amendment. 

Free speech fosters political change, holds 

officials accountable, and sustains all other facets of 

a healthy democracy. Limits on individual donations 

impede robust political speech. Amicus respectfully 

submits that the Buckley distinction was made in 

error and that the instant challenge presents the 

Court an opportunity to liberate political speech. Not 

only would this energize our democracy, reduce 

corruption, and keep with stare decisis, it would also 

be consistent with the Constitution. 

ARGUMENT 

I. THE FIRST AMENDMENT BROADLY 

PROTECTS POLITICAL SPEECH 

The Constitution protects individual liberty by 

enumerating the finite list of powers granted to the 

federal government and reserving all others to the 

states and the people. U.S. Const. amend. X. The 

First Amendment, in turn, broadly protects political 

expression in order to assure the unfettered 

exchange of ideas to advance the laws and policies 
5 

desired by the people. Roth v. United States, 354 

U.S. 476, 484 (1957). Congress lacks the authority to 

make laws that unduly restrict an individual’s ability 

to participate in the political process. 

It is well-settled that “the central purpose of the 

Speech and Press Clauses was to assure a society in 

which ‘uninhibited, robust, and wide-open’ public 

debate concerning matters of public interest would 

thrive, for only in such a society can a healthy 

representative democracy flourish.” N.Y. Times Co. v. 

Sullivan, 376 U.S. 254, 270 (1964). Free speech “is 

needed for republican government” and “informs 

voters about the conduct of elected officials, thereby 

helping voters to hold officials responsible at election 

time.” John Samples, Move to Defend: The Case 

against the Constitutional Amendments Seeking to 

Overturn Citizens United, Cato Institute Policy 

Analysis No. 724 (Apr. 23, 2013), at 2. “Officials in 

power have every reason to fear speech. It fosters 

change, not least in elections. Elected officials have 

strong reasons to find acceptable ways to suppress 

free speech.” Id. at 3. 

Moreover, the First Amendment protects political 

speech regardless of the nature or identity of the 

speaker. People don’t lose their rights upon coming 

together and forming associations, be they unions, 

non-profit advocacy groups, private clubs, for-profit 

corporations, or any other form. See, e.g., Ilya 

Shapiro & Caitlyn W. McCarthy, So What If 

Corporations Aren’t People?, 44 J. Marshall L. Rev. 

701, 707-08 (2011). Restrictions on campaign 

donations—particularly “aggregate” limits on 

election participation—impede robust political 

speech and thus rob our democracy of the vibrancy 

and dynamism it would otherwise have. 
6 

Indeed, restricting the liberty to engage in 

election campaigns because such engagement 

somehow injures the political system is 

fundamentally contrary to the constitutional 

structure of rights and powers. As James Madison 

said, “it could not be less folly to abolish liberty, 

which is essential to political life, because it 

nourishes faction, than it would be to wish the 

annihilation of air, which is essential to animal life, 

because it imparts to fire its destructive agency.” The 

Federalist No. 10, at 51-52 (James Madison) (Garry 

Wills ed., 2003). And as this Court recently held, “[i]f 

the First Amendment has any force, it prohibits 

Congress from fining or jailing citizens, or 

associations of citizens, for simply engaging in 

political speech.” Citizens United v. FEC, 558 U.S. 

310, 313 (2010). Since monetary contributions to 

parties and campaigns are a form of political speech, 

they too are protected by the First Amendment. 

A. THE FOUNDERS ENVISIONED 

CAMPAIGNS WITH OPEN DEBATE AND 

UNINHIBITED POLITICAL EXPRESSION 

The Founders believed that elections are the 

principal means of controlling government. See, e.g., 

The Federalist No. 51, at 316 (James Madison) 

(Garry Wills ed., 2003) (“A dependence on the people 

is no doubt the primary control on the government.”). 

Elections make politicians accountable to voters, 

which constrains the government monopoly on the 

legitimate use of force. If electoral competition ceases 

to exist, the Madisonian nightmare of government 

without effective restraints becomes possible. 

That’s why a “major purpose” of the First 

Amendment is “to protect the free discussion of 
7 

governmental affairs,” Mills v. Alabama, 384 U.S. 

214, 218 (1966), by limiting the government’s 

interference with the marketplace of ideas, especially 

political ideas. Free and open debate is “integral to 

the operation of the system of government 

established by our Constitution.” Buckley, 424 U.S. 

at 15. 

While Article I, Section 4, and Article II, Section 1 

authorize Congress to regulate federal elections, that 

regulation must be consistent with the First 

Amendment. As noted above, the Founders created 

the First Amendment to ensure free and robust 

political debate. They didn’t want such speech to be 

restricted by artificial limits on the means that are 

necessary for such debate—financial support. See 

generally David. M. Rabban, Free Speech in Its 

Forgotten Years (1997). Accordingly, this Court has 

held repeatedly that campaign contributions and 

expenditures are protected speech. 

B. THE BUCKLEY COURT CORRECTLY 

HELD THAT CAMPAIGN SPENDING IS A 

FORM OF SPEECH PROTECTED BY THE 

FIRST AMENDMENT AND FORESAW 

THE DANGERS OF EVEN THOSE 

CONTRIBUTION LIMITS IT APPROVED 

It is impossible to separate speech from the 

money that facilitates it. See, e.g., Citizens United, 

130 S. Ct. at 917 (Roberts, C.J., concurring) (“The 

First Amendment protects more than just the 

individual on a soapbox and the lonely 

pamphleteer.”). “Not a single justice of the United 

States Supreme Court who has voted in any of the 

more than a dozen cases involving the 

constitutionality of campaign finance regulations, 
8 

regardless of which way he or she came out in the 

case, has ever embraced the position that money is 

not speech.” Geoffrey R. Stone, Is Money Speech?, 

Huffington Post, Feb. 5, 2012, available at 

http://www.huffingtonpost.com/geoffrey-r-stone/ismoney-speech_b_1255787.html. 

Accordingly, this Court correctly held in Buckley 

that the spending of money, whether in the form of 

contributions or expenditures, is a form of speech 

protected by the First Amendment. 424 U.S. at 21. 

Candidates need to amass sufficient wealth to 

amplify and effectively disseminate their message to 

the electorate. Id. Restricting political contributions 

and expenditures “necessarily reduces the quantity 

of expression by restricting the number of issues 

discussed, the depth of their exploration, and the size 

of the audience reached.” Id. at 19. Contributions 

and expenditures facilitate this interchange of ideas 

and cannot be regulated as “mere” conduct unrelated 

to the underlying communicative act of making a 

contribution or expenditure. Id. at 24. 

While the Buckley Court allowed certain 

restrictions on contributions—though not 

expenditures—it cautioned that they “could have a 

severe impact on political dialogue if the limitations 

prevented candidates and political committees from 

amassing the resources necessary for effective 

advocacy.” Id. at 21. Rapid technological progress has 

accentuated the money-speech dynamic, and this 

Court should now rethink those restrictions. 
9 

II. BUCKLEY’S DISTINCTION BETWEEN 

CONTRIBUTIONS AND EXPENDITURES IS 

UNWORKABLE AND DESTABILIZES OUR 

CAMPAIGN FINANCE SYSTEM 

A. THE BUCKLEY DISTINCTION IS 

UNTENABLE AND UNWORKABLE 

In Buckley, this Court decided to treat caps on 

campaign expenditures, but not campaign 

contributions, as restrictions upon political speech, 

reasoning that, “while contributions may result in 

political expression if spent by a candidate or an 

association to present views to the voters, the 

transformation of contributions into political debate 

involves speech by someone other than the 

contributor.” Id. at 21. Expenditure limits, by 

contrast, “represent substantial rather than merely 

theoretical restraints on the quality and diversity of 

political speech.” Id. at 19. Accordingly, it declined 

to apply strict scrutiny to contribution limits. 

Subsequent to Buckley, a Court plurality described 

contributions as “speech by proxy” that are “not 

entitled to full First Amendment protection.” Calif. 

Medical Assn. v. FEC, 453 U.S. 182, 196 (1981). 

Yet the impact on the amount and diversity of 

political speech coming from contributions and 

expenditures is identical. “[T]here is no real 

difference between the First Amendment value of a 

contribution and an expenditure. A contribution is a 

quintessential act of political association just as an 

expenditure is an act of expression. Nor is there 

much difference between the real-world potential for 

corruption posed by each.” Burt Neuborne, The 

Supreme Court and Free Speech: Love and a 

Question, 42 St. Louis U. L.J. 789, 795 (1998). Even 
10 

in Buckley itself, several justices questioned the 

viability of the contribution-expenditure distinction. 

Chief Justice Burger, for example, stated that 

“contributions and expenditures are two sides of the 

same First Amendment coin.” Buckley, 424 at 241 

(Burger, C.J., concurring in part and dissenting in 

part). Restrictions on both violate the Constitution. 

Id. at 241-42. Distinguishing them is playing “word 

games” because both types of political disbursements 

have sufficient communicative content to require 

that laws infringing them be struck down. Id. at 244. 

Chief Justice Burger also added that restrictions 

on contributions unconstitutionally hamper political 

candidates and activity in the same way as 

restrictions on independent expenditures. Id. at 244. 

He pointed out that “contribution limitations . . . 

limit exactly the same political activity that the 

expenditure ceilings limit,” id. at 243, specifically, by 

limiting the amount of funds that can later be spent. 

The result is “an effective ceiling on the amount of 

political activity and debate that the Government 

will permit to take place.” Id. at 242. Yet the ability 

to project speech is as important as the ability to say 

it. A political writer would hardly be comforted if told 

that the First Amendment protects her words but not 

her access to the internet and printing presses. 

Over time, various justices have criticized 

Buckley’s expenditure/contribution distinction. 

Justice Thomas has in particular assailed it. See, 

e.g., Colo. Republican Fed. Campaign Comm., 518 

U.S. at 635-644 (Thomas, J., concurring in judgment 

and dissenting in part); Nixon v. Shrink Missouri 

Gov’t PAC, 528 U.S. 377, 410-429 (2000) (Thomas, J., 

dissenting); McConnell v. FEC, 540 U.S. 93, 265-286 

(2003) (Thomas, J., concurring in part and dissenting 
11 

in part). Justice Thomas has written that the 

Buckley distinction lacks in “constitutional 

significance.” Colo. Republican Fed. Campaign 

Comm., 518 U.S. at 636. He also noted that 

contributions and expenditures both implicate core 

First Amendment values because they both facilitate 

political debate; whether political money is spent 

independently or through a candidate or political 

party is irrelevant. Id. at 636-67. 

Justice Thomas suggested that Buckley’s 

framework be replaced with a strict scrutiny test to 

be applied to both contribution and expenditure 

limits. Id. at 639. Dissenting in part in McConnell, 

he appealed to history, observing that “repressive 

regimes have . . . attack[ed] all levels of the 

production and dissemination of ideas.” 540 U.S. at 

251 (2006) (Thomas, J., concurring in part and 

dissenting in part). He also traced some of the absurd 

consequences of the distinction: “What good is the 

right to print books without a right to buy works 

from authors? Or the right to publish newspapers 

without the right to pay deliverymen?” Id. at 252. 

The Court has also come to repudiate the concept 

of “speech by proxy” generally: 

The “proxy speech” approach is not useful . . . 

[where] the contributors obviously like the 

message they are hearing from [the] 

organization and want to add their voices to 

that message; otherwise they would not part 

with their money. To say that their collective 

action in pooling their resources to amplify 

their voices is not entitled to full First 

Amendment protection would subordinate 

the voices of those of modest means as 
12 

opposed to those sufficiently wealthy to be 

able to buy expensive media ads with their 

own resources. 

FEC v. Nat’l Conservative Pol. Action Comm., 470 

U.S. 480, 495 (1985). 

Numerous academics have also criticized the 

Buckley distinction. For example, Prof. Lillian 

BeVier has argued that both contributions and 

expenditures implicate significant First Amendment 

values, and so they should be treated the same way. 

See Lillian R. BeVier, Money and Politics: The First 

Amendment and Campaign Finance Reform, 73 Cal. 

L. Rev. 1045, 1063 (1985). She argues that the 

distinction is merely semantic because contribution 

limits and expenditure limits restrict the same type 

of activity. Id. BeVier would also subject both 

contributions and expenditures to heightened 

scrutiny. Id. at 1090. The Cato Institute’s resident 

political scientist, meanwhile, has noted that 

“[s]pending on elections by candidates and parties 

depends on spending by contributors. If candidates 

and parties do not raise money, they cannot spend 

it.” John Samples, The Fallacy of Campaign Finance 

Reform 34 (2006). 

In sum, Buckley’s distinction is untenable. As the 

court below acknowledged, “the constitutional line 

between political speech and political contributions 

grows increasingly difficult to discern.” McCutcheon 

v. FEC, 893 F. Supp. 2d 133, 136 (D.D.C. 2012). 

Having long been the target of persistent, cogent 

criticism, and with its underlying logic repudiated in 

subsequent rulings, this Court should abandon the 

contribution-expenditure distinction. 
13 

B. THE BUCKLEY DISTINCTION HAS 

DESTABILIZED OUR CAMPAIGN 

FINANCE SYSTEM 

The Buckley distinction and resultant limits on 

contributions have also caused the most commonly 

criticized problems of our campaign finance system. 

First, political candidates must spend an 

inordinate amount of time raising money due to the 

limits on the amount of each contribution. 

Candidates face an unlimited demand for campaign 

funds but a tapered supply, leading to more time 

spent fundraising as opposed to legislating. And the 

noose of contribution limits has only tightened due to 

inflation. Moreover, “because some political interests 

have access to methods of mobilizing small 

contributions, while many do not, campaign-finance 

regulations often have the effect of exacerbating 

inequalities in the influence of interests.” Thomas L. 

Gais, Campaign Contribution Limits: Cure or Curse?, 

22 Regulation 42, 43 (1999). In other words, 

contribution limits increase the time candidates 

spend on fundraising and exacerbate resource 

inequalities between different political interests. 

Second, the Buckley distinction helps the wealthy 

and other influential voices drown out the speech of 

average citizens. The contribution limit has 

decreased the influence of individuals and increased 

the importance of media, lawyers, consultants, and 

professional fundraisers. The Buckley Court failed to 

foresee the “pragmatic impact” of the dichotomy that 

it created: 

In effect, the Buckley Court authorized 

government to regulate the size and source of 

campaign contributions, thus permitting 
14 

significant regulation of the supply of funds 

to candidates, but forbade the government to 

place ceilings on expenditures, thus 

preventing any regulation of the demand for 

campaign funds. Any economist will tell you 

that an effort to regulate supply in the teeth 

of unlimited demand is a prescription for a 

black market. And that is exactly what 

happened to American politics. 

Neuborne, The Supreme Court & Free Speech, at 795. 

Third, contribution limits and other campaign 

finance regulations have gradually pushed the flow 

of money away from candidates and parties, towards 

unelected advocacy groups. This dynamic weakens 

the relative ability of campaigns to compete with 

special-interest groups, due to the increasing flow of 

campaign dollars through the direct independentspending route. Id. And this trend was visible long 

before Citizens United and SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010). As an unsurprising 

consequence of the Buckley distinction, donation 

limits to party committees have reduced the 

campaign influence of all political parties—whether 

Republican, Democrat, Libertarian, Green, or 

otherwise—making the field safer for rich 

individuals who form their own Super PACs and 

other campaign devices. Candidates who are neither 

well-known nor well-heeled are put at a significant 

disadvantage, reducing political competition. 

The Buckley Court cautioned that “contribution 

restrictions could have a severe impact on political 

dialogue if the limitations prevented candidates and 

political committees from amassing the resources 

necessary for effective advocacy.” Buckley, 424 U.S. 
15 

at 21. Parties don’t enjoy any special constitutional 

status, to be sure, but they also shouldn’t bear any 

legal disadvantage. 

Yet one of the unintended consequences of the 

Buckley distinction has been “the dispersion of 

money and activities among candidates and ‘shadow’ 

party groups,” reinforcing a “trend toward 

fragmented political campaigns.” Raymond La Raja, 

Small Change: Money, Political Parties and 

Campaign Finance Reform 44 (2008). For Prof. La 

Raja, these “shadow” groups include 527s, Super 

PACs, and labor organizations. Like other critics, La 

Raja suggests that campaign finance regulation has 

largely left national parties as peripheral players 

with limited direct influence over campaigns and too 

little ability to coordinate activities with candidates. 

Id. at 156-57. Finding contribution limits to be 

unconstitutional would restore some of the balance 

by removing restrictions on the political parties and 

candidates, providing for a more equal footing. 

The policy choice we face in campaign finance 

regulation is whether we prefer money to go directly 

to candidates and parties or whether we prefer that 

it be spent independently. Quite apart from the 

constitutional concerns raised by the appellants here, 

the current regulatory regime undermines the main 

goals of most campaign finance reformers: political 

accountability and open government. Contribution 

limits also undermine disclosure laws by inducing 

donors to seek third parties to spend on their behalf, 

bypassing the caps. This situation in turn blurs the 

connection between donors and the candidate or 

party they wish to support. The Buckley distinction 

and its concomitant contribution limits have thus 

caused a multitude of practical problems. 
16 

C. ELIMINATING THE BUCKLEY

DISTINCTION WOULD BOTH ENERGIZE 

OUR DEMOCRACY AND REDUCE 

CORRUPTION 

Our democracy would be energized if freed from 

contribution limits. More political speech leads to 

better informed voters, and the kind of speech 

fostered by campaign contributions—political ads—

tends to educate voters who are less inclined to 

search out information on their own. See John J. 

Coleman, The Benefits of Campaign Spending, Cato 

Institute Briefing Paper No. 84 (September 4, 2003). 

See also John Coleman and Paul F. Manna, 

Congressional Campaign Spending and the Quality 

of Democracy, 62 J. Pol. 757 (2002) (showing that 

campaign spending increases public knowledge of the 

candidates, including the ability to place them on 

ideological and issues scales); John Coleman, The 

Distribution of Campaign Spending Benefits across 

Groups, 63 J. Pol. 916 (2001) (arguing that campaign 

spending improves public trust and engagement and 

improves the accuracy of perceptions about 

candidates, particularly among socially 

disadvantaged groups). In other words, the speech 

facilitated by campaign contributions has a greater 

effect on those who, but for that campaign spending, 

would be ignorant of electoral issues. 

Further, informing voters fosters electoral 

competition by facilitating more criticism of 

incumbents and creating more name recognition for 

challengers. Coleman, The Benefits of Campaign 

Spending, at 4-5. As mentioned above, “absent 

contribution limits, challengers could raise money 

quickly and easily from a small number of donors, if 

they wished.” Dhammika Dharmapala and Filip 
17 

Palda, Are Campaigns Contributions a Form of 

Speech? Evidence from Recent U.S. House Elections, 

112 Pub. Choice 81, 87 (July 2002). Treating 

contributions the same as expenditures would not 

only be consistent with the Constitution, but would 

solve the problems Buckley brought into being and 

also lessen corruption and the appearance thereof. 

Contrary to what critics charge, “studies indicate 

that campaign spending does not diminish trust, 

efficacy, and involvement.” Coleman, The Benefits of 

Campaign Spending, at 8. That’s because “spending 

increases public knowledge of the candidates, across 

essentially all groups in the population. Less 

spending on campaigns is not likely to increase 

public trust, involvement, or attention. . . . Getting 

more money into campaign should, on the whole, be 

beneficial to American democracy.” Id. Moreover, “a 

deregulated system of campaign finance should be 

expected to increase electoral competition.” Samples, 

The Fallacy of Campaign Finance Reform 186. This 

competition would also reduce the power of 

incumbency and the corruption that can flow from it. 

III. STARE DECISIS SHOULD NOT SAVE THE 

BUCKLEY DISTINCTION 

A. STARE DECISIS MEANS FOLLOWING 

THE LAW, NOT MECHANICALLY 

PRESERVING EVERY PRECEDENT OR 

MAINTAINING ERRONEOUS DECISIONS 

Stare decisis reflects the common law’s 

declaratory view of precedent. Precedents are not law 

themselves, but instead are evidence of the law. See, 

e.g., Matthew Hale, The History of the Common Law 

of England 45 (Charles M. Gray ed., 1971) (1820) 
18 

(“the Decisions of Courts of Justice . . . do not make a 

Law . . . yet they have a great Weight and Authority 

in Expounding, Publishing, and Declaring what the 

Law of this Kingdom is.”). As William Blackstone 

explained, stare decisis does not require courts to 

extend or preserve an earlier decision that misstated 

or misapplied the law: 

[A judge is] not delegated to pronounce a 

new law, but to maintain and expound the 

old one. Yet this rule admits of exception, 

where the former determination is most 

evidently contrary to reason; much more if 

it be contrary to the divine law. But even in 

such cases the subsequent judges do not 

pretend to make a new law, but to vindicate 

the old one from misrepresentation. For if it 

be found that the former decision is 

manifestly absurd or unjust, it is declared, 

not that such a sentence was bad law, but 

that it was not law; that is, that it is not the 

established custom of the realm as has been 

erroneously determined. 

1 Commentaries 69-70 (Univ. of Chicago Press 1979) 

(1765). 

Blackstone concluded that “the law, and the 

opinion of the judge are not always convertible terms, 

or one and the same thing; since it sometimes may 

happen that the judge may mistake the law.” Id. at 

71. Precedent is binding “unless it can be shown that 

the law was misunderstood or misapplied in that 

particular case.” James Kent, 1 Commentaries on 

American Law 475, 477 (12th ed. 1989) (O.W. 

Holmes, Jr. ed. 1873). 

Stare decisis also derives from practical 
19 

considerations of doctrinal stability in order to “keep 

the scale of justice even and steady.” Blackstone, 1 

Commentaries 69. It is appropriate in many cases 

because “[i]t is by the notoriety and stability of such 

rules that professional men can give safe advice . . . 

and people in general can venture with confidence to 

buy and trust, and to deal with one another.” Kent, 1 

Commentaries 476. From its origins, stare decisis 

was intended to balance reliance interests in 

doctrinal stability with the countervailing interest in 

clarification when in an earlier case “the judge may 

mistake the law.” Blackstone, 1 Commentaries 71. 

The doctrine of stare decisis is basic and vital to our 

legal system, as inherited from the common law, yet 

we maintain important differences in our application 

of this traditional principle. 

In the United States, stare decisis does not 

mechanically preserve every precedent. While the 

doctrine plays an important part in the Court’s 

decision-making, it is not “an inexorable command.” 

Payne v. Tennessee, 501 U.S. 808, 827-28 (1991) 

(“Stare decisis is not an inexorable command; rather, 

it is a principle of policy and not a mechanical 

formula of adherence to the latest decision.”). Stare 

decisis, “promotes the evenhanded, predictable, and 

consistent development of legal principles, fosters 

reliance on judicial decisions, and contributes to the 

actual and perceived integrity of the judicial 

process.” Id. at 827. A core principle underlying 

stare decisis is that courts do not make the law, but 

rather declare what the law is. See, e.g., James B. 

Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 

(1991) (although “judges in a real sense ‘make’ law . . 

. they make it as judges make it, which is to say as 

though they were ‘finding’ it—discerning what the 
20 

law is, rather than decreeing what it is today 

changed to, or what it will tomorrow be.”) (Scalia, J., 

concurring in the judgment). Consequently, 

“precedents are not sacrosanct.” Patterson v. 

McClean Credit Union, 491 U.S. 164, 172 (1989). 

In other words, stare decisis is not “a binding 

principle by which a court—the U.S. Supreme Court 

or otherwise—never overrules its own precedent. 

Indeed, if precedent could never be reversed then 

Plessy v. Ferguson and Bowers v. Hardwick could 

never have yielded to Brown v. Board of Education

and Lawrence v. Texas, respectively.” Ilya Shapiro & 

Nicholas Mosvick, Stare Decisis after Citizens 

United: When Should Courts Overturn Precedent, 16 

Nexus: Chap. J. Pub. Pol’y 121, 123-124. One lower 

court put it this way: 

Stare decisis is the policy of the court to 

stand by precedent; the term is but an 

abbreviation of stare decisis et quieta non 

movere—“to stand by and adhere to decisions 

and not disturb which is settled.” Consider 

the word “decisis.” The word means, literally 

and legally, the decision. Nor is the doctrine 

stare dictis; it is not “to stand by or keep to 

what was said.” Nor is the doctrine stare 

rationibus decidendi—“to keep to the 

rationes decidendi of past cases.” Rather, 

under the doctrine of stare decisis a case is 

important only for what it decides—for the 

“what,” not for the “why,” and not for the 

“how.” Insofar as precedent is concerned, 

stare decisis is important only for the 

decision, for the detailed legal consequence 

following a detailed set of facts. 
21 

In re Osborne, 76 F.3d 306, 309 (9th Cir. 1996). 

This Court recognizes the importance of having 

settled rules of law. See Agostini v. Felton, 521 U.S. 

203, 235 (1997). But stare decisis is a prudential 

policy rooted in the declaratory view of precedent and 

its underlying interests are not equally compelling 

for all areas of law. See Payne, 501 U.S. at 828 

(“Considerations in favor of stare decisis are at their 

acme in cases involving property and contract rights, 

where reliance interests are involved”); Patterson, 

491 U.S. at 172-73 (“Considerations of stare decisis

have special force in the area of statutory 

interpretation, for here, unlike in the context of 

constitutional interpretation, the legislative power is 

implicated, and Congress remains free to alter what 

we have done.”). 

Not surprisingly, stare decisis is most flexible in 

constitutional cases, where Congress cannot “fix” an 

undesired legal interpretation: 

Stare decisis is usually the wise policy, 

because in most matters it is more important 

that the applicable rule of law be settled than 

that it be settled right. . . . But in cases 

involving the Federal Constitution, where 

correction through legislative action is 

practically impossible, this Court has often 

overruled its earlier decisions. 

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-

07, 410 (1932) (Brandeis, J., dissenting). 

Indeed, this “policy is at its weakest when we 

interpret the Constitution because our interpretation 

can be altered only by constitutional amendment or 

by overruling our prior decisions.” Agostini, 521 U.S. 

at 235. Moreover, “overruling a constitutional case 
22 

decided just a few years earlier is far from 

unprecedented.” FEC v. Wisc. Right to Life, Inc. 

(“WRTL II”), 551 U.S. 449, 501 (2007) (Scalia, J., 

concurring in part and concurring in the judgment) 

(collecting cases). For example, in the 50 years from 

1942 to 1992, this Court reversed itself 141 times. 

Cong. Research Serv., Supreme Court Decisions 

Overruled by Subsequent Decision (1992). 

The Court has further explained the policy of 

stare decisis as follows: 

[W]hen convinced of former error, this Court 

has never felt constrained to follow 

precedent. In constitutional questions, where 

correction depends upon amendment, and 

not upon legislative action, this Court 

throughout its history has freely exercised its 

power to reexamine the basis of its 

constitutional decisions. 

Smith v. Allwright, 321 U.S. 649, 665 (1944). 

The present case turns on the proper 

interpretation of the First Amendment, of course, not 

on statutory construction or on property or contract 

rights. “This Court has not hesitated to overrule 

decisions offensive to the First Amendment (a ‘fixed 

star in our constitutional constellation,’ if there is 

one)—and to do so promptly where fundamental 

error was apparent.” WRTL II, 551 U.S. at 500 

(Scalia, J., concurring in part and concurring in the 

judgment) (internal citation omitted). Courts should 

not, and cannot, give as much judicial deference to 

constitutional decisions, as they would to common 

law cases or statutes. The doctrine of stare decisis is 

thus at its apogee here. 
23 

B. ABANDONING THE BUCKLEY 

DISTINCTION WOULD BE CONSISTENT 

WITH STARE DECISIS

The Buckley distinction does not survive scrutiny 

under the factors that courts consider in applying 

stare decisis: how well-reasoned and old the original 

opinion is; how much people have relied on it; and 

how well the resulting legal rule works. 

The contribution-expenditure distinction, 

controversial and confusing in its own day, has not 

engendered the kind of reliance interests that stare 

decisis contemplates protecting. There are no 

contract or property rights at issue and no one has 

“ordered their thinking and living” Planned 

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 

(1992), in reliance on the continued viability of the 

Buckley distinction. See Kent, 1 Commentaries 443 

(stare decisis helps ensure “people in general can 

venture with confidence to buy and trust, and to deal 

with one another.”). On the contrary, restrictions on 

contributions have had a chilling effect on the 

exercise of the constitutional right to freedom of 

speech. No one is relying on having less freedom of 

speech, so no reliance interests weigh in favor of 

extending or preserving the distinction. 

In fact, the only entities “relying” on the Buckley 

distinction are the oft-criticized “independent 

spending groups,” such as Super PACs, which 

dominated the airwaves during the 2012 election 

cycle. Those groups partially depend on the 

contribution limits to funnel money in their 

direction. Yet it turns common sense and the First 

Amendment on their heads to say that one group is 

“relying” on the First Amendment rights of another 
24 

group being squelched. That absurdity only 

underscores the dangers of this Court drawing 

distinctions that micromanage political speech as if 

elections were no different than other businesses the 

federal government regulates. Many businesses, of 

course, “rely” on federal policies that 

disproportionately hamstring their competitors, but 

this Court should not maintain a distinction that 

that prefers one type of speaker over another. 

Another “relevant factor” under stare decisis is 

“the antiquity of the precedent.” Montejo v. 

Louisiana, 556 U.S. 778, 792 (2009). See also WRTL 

II, 551 U.S. at 501 (“Overruling a constitutional case 

decided just a few years earlier is far from 

unprecedented.”). But Buckley is relatively recent. 

Further, by deviating from First Amendment 

principles, the Buckley distinction created an 

unworkable regulatory regime riddled with 

increasingly arbitrary exemptions, which are 

irreconcilable with the “corruption” interest 

conceived in the case. All Americans should be free to 

engage unfettered in constitutionally protected 

speech. 

As Chief Justice Roberts wrote in Citizens United, 

“when fidelity to any particular precedent does more 

to damage this constitutional ideal [the rule of law] 

than to advance it, we must be more wiling to depart 

from that precedent.” 558 U.S. 310, 378 (2010) 

(Roberts, J., concurring). Stare decisis does not 

require preserving or extending precedents that 

misstate the law. As such, it does not shield the 

distinction created in Buckley from being reexamined 

and overturned. 
25 

CONCLUSION 

The aggregate contribution limits that stem from 

the Buckley v. Valeo contribution/expenditure 

distinction are an unjustified infringement of the 

First Amendment. This Court should reverse the 

decision below and remand for entry of a permanent 

injunction. 

 

 Respectfully submitted, 

ILYA SHAPIRO

 Counsel of Record 

SOPHIE COLE

Cato Institute 

1000 Mass. Ave., NW 

Washington, D.C. 20001 

(202) 842-0200 

ishapiro@cato.org 

MAY 13, 2013