United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 29, 2017 Decided November 28, 2017

No. 16-5194

LAURA HOLMES AND PAUL JOST,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

On Certification of a Constitutional Question

from the United States District Court

for the District of Columbia

(No. 1:14-cv-01243)

Allen Dickerson argued the cause and filed the briefs for 

appellants. Owen D. Yeates entered an appearance.

Erin Chlopak, Acting Assistant General Counsel, Federal 

Election Commission, argued the cause for appellee. With her 

on the brief were Lisa J. Stevenson, Deputy General Counsel, 

Kevin Deeley, Associate General Counsel, and Steve N. Hajjar

and Charles Kitcher, Attorneys.

J. Gerald Hebert, Fred Wertheimer, and Donald J. Simon

were on the brief for amici curiae Campaign Legal Center and 

Democracy 21 in support of appellee.

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 1 of 26
1

Before: GARLAND, Chief Judge, and HENDERSON, 

ROGERS, TATEL, BROWN∗, GRIFFITH, KAVANAUGH,

SRINIVASAN, MILLETT, PILLARD, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: The Federal Election 

Campaign Act imposes limits on the amountsthat an individual 

may contribute to a candidate for federal office. 52 U.S.C. 

§ 30116(a)(1)(A). Those contribution ceilings, known as 

FECA’s base limits, aim to prevent the appearance or actuality

of corruption associated with large campaign contributions to

federal office holders and candidates.

In 2014, FECA’s base limits permitted contributions of up

to $2,600 to a candidate in each election in which she 

competed. So, for instance, if a candidate prevailed in a 

primary election and then competed in the general election, a 

donor could have contributed $2,600 to her for the primary and 

another $2,600 for the general. The same $2,600 ceiling would 

also have applied to any runoff election in which the candidate

took part. 

The plaintiffs in this case wished to make contributions to 

a candidate in the general election in amounts exceeding the 

$2,600 per-election limit. In particular, they sought to forgo 

making any contributions at all in the primary election but then 

effectively to carry over to the general election the amount they 

could have donated in the primary. That would have enabled 

them to contribute $5,200 to a candidate in the general election 

alone, double the applicable limit for that election.

 ∗ Circuit Judge Brown was a member of the en banc court but 

retired before issuance of this opinion. 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 2 of 26
2

Prohibited by FECA from doing so, plaintiffs brought an 

action challenging the constitutionality of the statute’s base 

limits on individual contributions to candidates. According to 

plaintiffs, FECA violates their First Amendment rights by

allowing separate contributions to a candidate in the primary 

and general elections of $2,600 each, but disallowing a 

contribution in a corresponding total amount of $5,200 if 

confined to the general election alone.

Plaintiffs’ argument amounts to a challenge to Congress’s 

choice to structure the base contribution limits for individuals

as per-election ceilings. When establishing those limits, 

Congress had to pick some temporal frame of reference: a 

contribution ceiling, to be effective, must specify not only a

maximum contribution amount (e.g., $2,600) but also a

timeframe in which that amount may be expended (e.g., $2,600 

in each election). Plaintiffs, in contending that they must be 

permitted to contribute twice the maximum amount in one

(general) election if they skip any contribution in a different 

(primary) election, necessarily contest Congress’s choice of a 

per-election ceiling.

We decline plaintiffs’ invitation to upend the per-election 

structure of FECA’s base limits on individual contributions to 

candidates. The Supreme Court, in Buckley v. Valeo, 424 U.S. 

1 (1976), rejected a constitutional challenge to those ceilings, 

and that holding remains undisturbed. The Court explained 

that, as long as a contribution limit is not so low as to prevent 

candidates from mounting effective campaigns, the judiciary 

would generally defer to Congress’s determination of the 

limit’s precise amount. We conclude the same is true of

Congress’s intertwined choice of the timeframe in which that

amount may be contributed. As a result, we reject plaintiffs’ 

challenge to Congress’s decision to fashion FECA’s base

contribution limits for individuals as per-election ceilings.

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 3 of 26
3

I.

The Federal Election Campaign Act (FECA) restricts the 

amounts that an individual may contribute to any federal 

candidate or political (e.g., party) committee. 52 U.S.C. 

§ 30116(a)(1). Those limits on a person’s contributions to a 

particular candidate or political committee are referred to as 

FECA’s “base” limits, as distinguished from the statute’s

“aggregate” limits on a person’s overall contributions to all 

candidates or political committees, collectively. The Supreme 

Court invalidated FECA’s aggregate limits in McCutcheon v. 

FEC, 134 S. Ct. 1434 (2014), but the base limits remain intact.

The base limits on contributions to federal candidates

operate on a per-election basis, whereas the base limits on 

contributions to political committees operate on an annual

basis. 52 U.S.C. § 30116(a)(1). This case concerns the perelection ceiling on individual contributions to candidates.

A.

Originally, Congress limited an individual’s contributions 

to federal candidates solely through an aggregate, $5,000 

ceiling on donations “during any calendar year.” Hatch Act 

Amendments of 1940, Pub. L. No. 76-753, § 13(a), 54 Stat. 

767, 770. In 1974, Congress amended FECA to add the base 

limits on contributions to candidates that are at issue here. See 

Federal Election Campaign Act Amendments of 1974, Pub. L. 

No. 93-443, § 101(a), 88 Stat. 1263, 1263.

Those base limits differed from the original ceiling on 

individual contributions to candidates in two ways. First, 

whereas the original ceiling had been an aggregate limit on a 

person’s collective contributions to all candidates, Congress 

fashioned the base limits as a cap on the amount of 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 4 of 26
4

contributions to any individual candidate. Second, and of 

particular relevance here, whereas the aggregate limits

operated as an annual ceiling, Congress structured the base 

limits on individual contributions to candidates as a perelection ceiling. And Congress defined an “election” to include 

any “general, special, primary, or runoff election.” Federal 

Election Campaign Act of 1971, Pub. L. No. 92-225 § 201, 86 

Stat. 3, 8. The result was that the base limits, as enacted in 

1974, imposed a $1,000 ceiling on a person’s contributions to 

any given candidate in any given election. 88 Stat. at 1263.

In 2002, Congress increased the base contribution limit to 

$2,000 per election and indexed it to inflation for future cycles. 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-

155, § 307(a), (d), 116 Stat. 81, 102-03 (codified as amended 

at 52 U.S.C. § 30116(a)(1)(A), (c)). Congress also kept in 

place (and increased) the aggregate limit on an individual’s 

contributions to all federal candidates. See id. § 307(b) 

(codified at 52 U.S.C. § 30116(a)(3)(A)). But that aggregate 

ceiling, as noted, was set aside by the Supreme Court in

McCutcheon, 134 S. Ct. 1434. The Court, though, expressly

left the base limits “undisturbed.” Id. at 1451 (plurality 

opinion). (Because the plurality in McCutcheon issued the 

controlling opinion, see Marks v. United States, 430 U.S. 188, 

193-94 (1977), we will treat that opinion as the opinion of the 

Court.)

When the Court decided McCutcheon in 2014, the base 

limits, as adjusted for inflation, allowed an individual to 

contribute up to $2,600 per election to a given candidate. See 

134 S. Ct. at 1442. While the base limits have increased to 

$2,700 in the intervening years, see Price Index Adjustments 

for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 82 Fed. Reg. 10,904, 10,906 

(Feb. 16, 2017), we will consider $2,600 as the operative perUSCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 5 of 26
5

election limit because 2014 is the relevant election cycle for 

purposes of this case.

B.

The plaintiffs in this case, Laura Holmes and Paul Jost, are 

a married couple residing in Florida. In the 2014 congressional 

elections, plaintiffs each supported a different candidate, one 

of whom ran for a California seat and the other of whom ran 

for an Iowa seat. 

Plaintiffs made no contributions to their preferred 

candidates in the primary election. But they both contributed 

the maximum amount then permitted by FECA, $2,600, to their 

preferred candidates in the general election. And both would 

have contributed an additional $2,600 in the general election if 

not for FECA’s per-election contribution ceiling. Plaintiffs’

preferred candidates each lost in the general election.

FECA enables any eligible voter to challenge the 

constitutionality of the Act in federal district court. 52 U.S.C. 

§ 30110. In July 2014, plaintiffs brought this action against the 

Federal Election Commission. They alleged that FECA’s perelection base contribution limit violates the First Amendment 

and the equal protection component of the Fifth Amendment. 

That was so, plaintiffs contended, because the per-election 

limit allows contributing $2,600 to a candidate in each of the 

primary and general elections but bars contributing the same 

cumulative amount of $5,200 if allocated entirely to the general 

election.

FECA calls for a district court to certify non-frivolous 

constitutional questions to the en banc court of appeals. 52 

U.S.C. § 30110; Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 

n.14 (1981). The district court determined that plaintiffs’

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 6 of 26
6

constitutional challenges involved “questions of settled law” 

and thus did not warrant certification to our court. Holmes v. 

FEC, 99 F. Supp. 3d 123, 149 (D.D.C. 2015). A panel of this 

court disagreed with respect to plaintiffs’ First Amendment 

claim, holding that no Supreme Court precedent squarely 

addressed the “constitutionality of the Act’s per-election 

structure” for contributions to candidates. Holmes v. FEC, 823 

F.3d 69, 75 (D.C. Cir. 2016). The panel therefore remanded 

the case to the district court to make appropriate findings of 

fact and certify the relevant constitutional question to this court 

sitting en banc. Id. at 76.

On remand, the district court certified its previous factual 

findings, together with the following question, for our en banc 

consideration: 

When federal law limits individual contributors to 

giving $2,600 to a candidate for use in the primary 

election and $2,600 to a candidate for use in the general 

election and denies Plaintiffs the ability to give $5,200 

to a candidate solely for use in the general election, 

does it violate Plaintiffs’ rights of freedom to associate 

guaranteed by the First Amendment, U.S. Const. 

amend. I?

Am. Order, ECF No. 42. We now take up that question.

II.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court 

upheld FECA’s base contribution limits for individuals against 

a First Amendment challenge. Plaintiffs seek to distinguish 

their claim from the one denied in Buckley by arguing that the 

Supreme Court did not specifically consider the validity of the 

per-election structure of those limits. We conclude, however, 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 7 of 26
7

that the analysis in Buckley ultimately governs—and compels

rejecting—plaintiffs’ challenge to the per-election structure of 

FECA’s base limits. 

In fashioning FECA’s base limits for individuals as perelection ceilings, Congress mirrored the approach adopted by

many states: the vast majority of states to establish 

contribution ceilings for state elections have likewise opted for 

a per-election format. See Amicus Br. of Campaign Legal Ctr. 

18-19. In plaintiffs’ view, Congress and the states are 

forbidden to make that choice. We hold otherwise.

A.

 

In Buckley, the Supreme Court set out the standards for 

judicial review of campaign-finance regulations challenged 

under the First Amendment. The Court drew a distinction 

between limits on a person’s expenditures for election-related 

advocacy and limits on a person’s contributions to candidates 

(or party committees). Restrictions on a person’s independent 

expenditures must survive “strict scrutiny,” which requires that 

the limitations advance a compelling governmental interest and 

constitute the least restrictive means of doing so. See 

McCutcheon, 134 S. Ct. at 1444; Buckley, 424 U.S. at 44-45; 

Wagner v. FEC, 793 F.3d 1, 5 (D.C. Cir. 2015) (en banc). 

Restrictions on a person’s campaign contributions, meanwhile, 

draw “a lesser but still ‘rigorous standard of review.’” 

McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at 

29). 

Contribution limits are subject to a more relaxed standard 

because they “impose a lesser restraint on political speech”: 

they “permit[] the symbolic expression of support evidenced 

by a contribution but do[] not in any way infringe the 

contributor’s freedom to discuss candidates and issues.” Id. at 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 8 of 26
8

1444 (quoting Buckley, 424 U.S. at 21). Under the applicable

standard for contribution limits, “[e]ven a significant 

interference with protected rights of political association may 

be sustained if the State demonstrates a sufficiently important 

interest and employs means closely drawn to avoid 

unnecessary abridgement of associational freedoms.” Id. 

(emphasis added) (internal quotation marks omitted) (quoting 

Buckley, 424 U.S. at 25); see Wagner, 793 F.3d at 5.

Buckley, applying that “closely drawn” standard, sustained

FECA’s base limits on individual contributions to candidates

against a First Amendment challenge. At the time, FECA

imposed a $1,000 ceiling on a person’s contributions to a given 

candidate in each election. See Buckley, 424 U.S. at 23. Then, 

as now, the statute treated primary elections, general elections, 

and runoff elections as distinct events for purposes of the perelection contribution ceiling. See id. at 24; 52 U.S.C. 

§ 30101(1)(A), § 30116(a)(1)(A), (a)(6).

The Court found it “unnecessary to look beyond the Act’s 

primary purpose—to limit the actuality and appearance of 

corruption resulting from large individual financial 

contributions—in order to find a constitutionally sufficient 

justification for the $1,000 contribution limitation.” 424 U.S. 

at 26. The Court explained that the “$1,000 contribution 

limitation focuses precisely on the problem of large campaign 

contributions—the narrow aspect of political association where 

the actuality and potential for corruption have been 

identified—while leaving persons free to engage in 

independent political expression.” Id. at 28.

The Court also rejected the contention “that the $1,000 

restriction is unrealistically low because much more than that 

amount would still not be enough to enable an unscrupulous 

contributor to exercise improper influence over a candidate or 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 9 of 26
9

officeholder, especially in campaigns for statewide or national 

office.” Id. at 30. In that regard, the Court noted that FECA’s 

then-existing limits on expenditures (as opposed to the limits 

on contributions) were “scaled to take account of the 

differences in the amounts of money required for congressional

and Presidential campaigns.” Id. at 30 n.32. While the 

contribution limits might “have been structured” in a similarly 

“graduated” way depending on the office sought—instead of 

taking the form of a flat, $1,000 ceiling regardless of office—

“Congress’ failure to engage in such fine tuning [did] not 

invalidate the legislation.” Id. at 30.

B.

In light of the Supreme Court’s decision in Buckley, 

plaintiffs here understandably “concede the constitutionality of 

contribution limits generally.” Plaintiffs’ Opening Br. 9. They

also “do not challenge the specific dollar amount Congress has 

chosen.” Id. at 12. That, too, is with good reason: the $2,600 

base contribution limit applicable to plaintiffs represents an 

updated version of the $1,000 ceiling sustained in Buckley.

Plaintiffs instead characterize their claim as contesting

“only the manner in which the total amount of money that 

Congress has said will not corrupt a candidate is split between 

the primary and general elections.” Id. at 12-13. That claim, 

in plaintiffs’ view, remains viable after Buckley. Plaintiffs’

elaboration of their claim proceeds in the following steps.

First, plaintiffs describe FECA as imposing an “overall 

$5,200 cap on contributions,” which they conceive to be the 

statute’s “base limit.” Id. at 9, 19. Second, they contend that 

the statute’s “artificial bifurcation” of that ostensible limit into 

separate, $2,600 ceilings for the primary and general elections

must itself combat corruption in a manner satisfying the 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 10 of 26
10

“closely drawn” standard applicable to contribution limits. 

Plaintiffs’ Reply Br. 1, 12. Third, plaintiffs argue that the

bifurcation between the primary and general elections cannot 

be sustained because the statute permits—and hence considers

non-corrupting—a total of $5,200 in contributions over those

two elections. As a result, plaintiffs submit, they cannot be 

forced to divide their desired $5,200 contribution between the 

primary and general elections.

Plaintiffs’ argument falls short at every step. Their 

challenge ultimately seeks to invalidate the per-election 

structure of FECA’s base contribution limits for individuals. 

Plaintiffs would prefer a version of an election-cycle ceiling (of 

$5,200) to the per-election ceiling (of $2,600) chosen by 

Congress. But just as the Supreme Court in Buckley declined 

to overturn Congress’s choice of a $1,000 contribution ceiling 

over a higher ceiling, we see no basis to upset Congress’s

choice of a per-election ceiling over a per-cycle ceiling.

1.

The starting premise of plaintiffs’ argument is that FECA 

imposes a $5,200 base limit on a person’s contributions to a 

candidate, which the statute, as plaintiffs see things, artificially

bifurcates between the primary and general elections. 

Plaintiffs’ understanding of FECA is fundamentally mistaken. 

Contrary to plaintiffs’ account of FECA, there is no $5,200 

base contribution ceiling split between the primary and general 

elections. Instead, the Act by its terms establishes a $2,000 

contribution limit, adjusted for inflation, which “shall apply 

separately with respect to each election.” 52 U.S.C. 

§ 30116(a)(1)(A), (a)(6). The statute then defines an “election” 

to include a primary election or general election (and also, if 

applicable, a runoff election). Id. § 30101(1)(A). As a result, 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 11 of 26
11

FECA does not establish any overarching $5,200 ceiling that is 

then divided into separate $2,600 caps for the primary and 

general elections. The statute, rather, simply imposes a $2,600 

base limit for each of those (and any other) elections.

To be sure, the upshot of the $2,600 per-election base limit

is that, if a person contributes the maximum amount to a 

candidate who competes in both a primary and a general 

election, the combined contributions would equal $5,200. The 

Supreme Court thus has referred to a “$5,200 base limit” as 

shorthand for the total contributions permitted across a primary 

and general election together. McCutcheon, 134 S. Ct. at 1452. 

But the Court specifically understood that the $5,200 figure is 

only an extrapolation of the statute’s actual base limit, i.e., 

$2,600 per election: the Court explained that FECA’s “base 

limits . . . permit an individual to contribute up to $2,600 per 

election to a candidate ($5,200 total for the primary and general 

elections).” Id. at 1442 (emphasis added).

The absence of any $5,200 base limit in the statute 

becomes particularly evident when one considers the potential 

implications of a runoff election. That is hardly an 

unpredictable occurrence. In the 2014 election cycle alone, 15 

congressional races included at least one runoff election, and 

in the decade culminating in the 2014 cycle, 95 congressional 

races involved a runoff election. Holmes, 99 F. Supp. 3d at 

133. Because FECA’s $2,600 per-election ceiling applies 

separately to any runoff election, the permissible contributions 

to a candidate who competes in a primary, runoff, and general 

election would reach $7,800—not just $5,200—over the course 

of an election cycle.

The statute, in short, imposes a $2,600 per-election limit, 

not any $5,200 (or $7,800) limit. Accordingly, when plaintiffs 

challenge what they characterize as the “per-election division”

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 12 of 26
12

or “bifurcation” of the supposed $5,200 base limit, Plaintiffs’ 

Opening Br. 9, 13, they in fact challenge the per-election 

structure of the $2,600 base limit. They would like to 

contribute $5,200 to a candidate in the general election alone, 

which the $2,600 per-election cap forbids them from doing.

2.

Plaintiffs argue that Congress’s choice of a per-election 

structure must itself advance an anti-corruption interest under

the “closely drawn” test set out in Buckley. Plaintiffs do not 

dispute that the $2,600 base contribution limit, as a general 

matter, serves to prevent corruption (or its appearance) in 

satisfaction of that standard. But they conceive of the limit’s 

per-election structure as an added restriction that must 

separately promote an anti-corruption objective.

Plaintiffs ground their understanding in the Supreme 

Court’s decision in McCutcheon. There, the Court invalidated

FECA’s aggregate contribution limits, reasoning that those 

ceilings afforded no additional anti-corruption benefit beyond 

the base limits. The Court observed that the base limits had 

been “upheld [in Buckley] as serving the permissible objective 

of combatting corruption.” 134 S. Ct. at 1442. And although

the government “contend[ed] that the aggregate limits also 

serve that objective,” the Court found “that the aggregate limits 

do little, if anything, to address that concern.” Id. The Court

further noted that the base limits “themselves are a prophylactic 

measure.” Id. at 1458. The “aggregate limits are then layered 

on top, ostensibly to prevent circumvention of the base limits.” 

Id. But because the aggregate limits did not in fact serve that 

purpose, the “prophylaxis-upon-prophylaxis approach” they 

embodied was deemed invalid. Id. 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 13 of 26
13

Plaintiffs seek to draw a parallel between the per-election 

structure at issue here and the aggregate limits examined in 

McCutcheon. They contend that, like the aggregate limits, the 

per-election structure of the base contribution ceilings “is not 

closely drawn” unless it “is targeted toward a risk of corruption 

that is not already addressed by the contribution limits in 

general.” Plaintiffs’ Opening Br. 16. And the per-election 

structure of those ceilings, plaintiffs submit, fails to advance

the anti-corruption interest in any way not already 

accomplished by the base limits. Plaintiffs thus conclude that, 

“like the unconstitutional aggregate limits at issue in 

McCutcheon, the bifurcated [i.e., per-election] limits are 

‘layered on top’ of base limits that themselves . . . combat 

corruption” only indirectly, amounting to an invalid

“prophylaxis-upon-prophylaxis” approach of the kind rejected

in McCutcheon. Id. at 24.

Plaintiffs’ effort to analogize the base limits’ per-election 

structure to the aggregate ceilings considered in McCutcheon

is misconceived. The aggregate limits were an additional 

constraint “layered on top” of the base limits, McCutcheon, 134 

S. Ct. at 1458, and thus separately needed to serve the interest 

in preventing the appearance or actuality of corruption. The 

contribution ceilings’ per-election structure, by contrast, is not 

layered on top of the base limits; it is an integral part of the 

base limits themselves. 

A contribution limit necessarily contains two essential 

ingredients: (i) a monetary cap, and (ii) a time period. A statute 

simply specifying that contributions may be made “annually,” 

without setting forth any monetary ceiling, would of course be 

entirely ineffectual (and nonsensical): it would seemingly 

allow contributions of any amount within a given year. 

Likewise, a statute capping contributions at $2,600, without 

identifying any associated timeframe, would be equally 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 14 of 26
14

ineffectual: it would seemingly allow repeated contributions 

of $2,599 without end.

To impose a meaningful contribution ceiling, then, 

Congress has no choice but to specify some time period in 

which donors can contribute the maximum amount. There are 

a host of alternatives in that regard.

Congress could impose an annual ceiling, as it did with 

FECA’s base limits on contributions to political committees. 

See id. at 1442; 52 U.S.C. § 30116(a)(1)(B)-(D). Congress 

could also establish a biennial cap, as with the aggregate limits 

considered in McCutcheon. Id. § 30116(a)(3). Congress could 

instead fashion a limit encompassing an election cycle, as with 

the per-cycle regime favored by plaintiffs and adopted by 

certain states. E.g., Ariz. Rev. Stat. Ann. § 16-912(A); Md. 

Code Ann., Elec. Law § 13-226(b); Vt. Stat. Ann. tit. 17, 

§ 2941(a)(1)-(3). Or Congress could impose a ceiling for each 

election, as with the $2,600 per-election limit we consider here,

or with the per-election caps enacted by the majority of states, 

see Amicus Br. of Campaign Legal Ctr. 18-19.

Congress’s choice of a per-election structure thus is not a 

“prophylaxis-upon-prophylaxis”—a second anti-corruption 

measure layered on top of the base limits. Instead, the perelection structure is an essential ingredient of the base limits 

themselves—the first layer of prophylaxis. Unlike in 

McCutcheon, then, there is no warrant for attempting to

ascertain whether the per-election timeframe of the $2,600 base 

limit itself combats corruption. Rather, it is enough if that base 

limit as a whole (of which its time period is an integral element) 

prevents the appearance or actuality of corruption in a manner 

satisfying the closely drawn standard.

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 15 of 26
15

The Supreme Court’s analysis in Buckley bears out that 

understanding. There, the Court applied the closely drawn 

standard to the $1,000 per-election base contribution ceiling 

then in existence. 424 U.S. at 24-29. The Court concluded that 

the $1,000 base limit advanced the “weighty interests” in 

combatting corruption or its appearance in a manner “sufficient 

to justify the limited effect upon First Amendment freedoms.” 

Id. at 29. The Court found “no indication” that the $1,000 

ceiling established by Congress would “prevent[] candidates” 

from “amassing the resources necessary for effective 

advocacy.” Id. at 21; see Randall v. Sorrell, 548 U.S. 230, 247-

49 (2006) (plurality opinion) (discussing Buckley).

Having generally sustained the base limit under the closely 

drawn standard, the Court then examined whether the acrossthe-board, $1,000 ceiling was too low as applied to certain 

elections for which a higher ceiling would still prevent

corruption (such as campaigns for statewide or national office, 

which typically require greater amounts of funding). Buckley, 

424 U.S. at 30. In addressing that question, the Court did not 

ask whether Congress’s choice of a flat, $1,000 limit—instead 

of a graduated scheme allowing for higher ceilings for certain 

elections—itself advanced the anti-corruption interest under 

the closely drawn test. The Court instead explained that, once 

it was “satisfied that some limit on contributions is necessary” 

to address corruption, it had “no scalpel to probe, whether, say, 

a $2,000 ceiling might not serve as well as $1,000.” Id. 

(quoting Buckley v. Valeo, 519 F.2d 821, 842 (D.C. Cir. 1975)). 

That was a “distinction[] in degree,” not a “difference[] in 

kind.” Id.

The same is true of Congress’s choice of a per-election cap 

rather than a per-cycle, annual, or biennial one. Just as Buckley 

did not require Congress to explain its choice of $1,000 rather 

than $2,000 as itself closely drawn to preventing corruption, 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 16 of 26
16

we see no basis for requiring Congress to justify its choice 

concerning the other essential element of a contribution limit—

its timeframe—as itself serving that interest. A contribution 

ceiling, we know from Buckley, can validly promote an anticorruption objective, at least as long as it is not so low as to 

prevent effective campaigns. If so, Congress need not justify

its exact choice as to the ceiling’s time period (or dollar 

amount) with some added anti-corruption explanation.

3.

Even if the per-election structure of FECA’s $2,600 base 

limit need not separately advance the limit’s anti-corruption 

objective, plaintiffs argue, allowing them to exceed that 

amount at least would not undermine that objective. As a 

result, plaintiffs reason, they should be permitted to contribute 

$5,200 in the general election. They stress that the $2,600 perelection ceiling would allow cumulative contributions of 

$5,200 to a candidate who participates in both the primary and

general elections. If $5,200 in contributions across both

elections raises no undue prospect of corruption, plaintiffs ask, 

then what could be the reason to disallow the same overall

contribution across the elections merely because it is paid in

the general election alone?

Congress had a perfectly understandable reason: 

Congress, needing to select some timeframe in order to 

establish an effective base contribution limit, chose a perelection structure and reasonably defined the primary and 

general elections as separate events for purposes of the $2,600 

ceiling. Enforcement of the $2,600 per-election limit 

necessarily means that a person cannot be allowed to contribute 

twice that amount to a candidate in the general election alone. 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 17 of 26
17

Plaintiffs’ challenge, though, would prohibit giving effect 

to that per-election ceiling anytime a person contributes less 

than $2,600 to a candidate in the primary election. Such a 

person, under plaintiffs’ rationale, would be entitled to 

contribute more than the $2,600 per-election cap in the general 

election, up to a combined contribution of $5,200 for both the 

primary and general elections. So someone who makes no 

contribution in the primary could contribute the full $5,200 in 

the general election, someone who gives $1,000 in the primary 

could contribute the remaining $4,200 in the general election, 

and so on. 

Plaintiffs’ rationale, in that fashion, would effectively

transform the per-election, $2,600 contribution limit chosen by 

Congress into a per-cycle, $5,200 contribution limit, at least in 

the case of a person who contributes less than $2,600 in the 

primary. Plaintiffs insist that they do not desire a pure, percycle structure. They observe that, while they wish to 

contribute up to $5,200 in the general election, they have no 

reciprocal interest in contributing up to $5,200 in the primary 

election, as would also be permitted in a pure, per-cycle 

regime. In other words, they seek only to backload their 

desired $5,200 contribution, not frontload it. 

Regardless, plaintiffs at least seek a variant of a per-cycle 

ceiling—a back-loaded adaptation—under which they can give 

up to $5,200 in the general election by carrying over any 

amounts that could have been (but were not) contributed in the 

primary. Plaintiffs thus would displace Congress’s perelection structure with a version of a per-cycle structure.

We know of no reason to compel adoption of a per-cycle 

ceiling instead of a per-election one (or vice versa). After all, 

a contribution limit, whether structured as a per-election or percycle ceiling, generally addresses the appearance and actuality 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 18 of 26
18

of corruption from large campaign donations. Plaintiffs make 

no attempt to suggest that a per-cycle approach bears some

inherent structural advantage on that score. The many states to 

have chosen per-election contribution ceilings evidently 

believe otherwise. Cf. McCutcheon, 134 S. Ct. at 1451 n.7 (“It 

would be especially odd to regard aggregate limits as essential 

to enforce base limits when state campaign finance schemes 

typically include base limits but not aggregate limits.”).

Moreover, even if there were some ground compelling us 

to transform Congress’s $2,600 per-election ceiling into a percycle analogue, we could not assume that Congress necessarily 

would have chosen a per-cycle cap of $5,200. Congress could 

conceivably regard a one-time contribution of $5,200 in the 

general (or primary) election alone to present a greater risk of 

apparent or actual corruption than two distinct contributions of 

$2,600 in each of the primary and general elections. For that 

reason as well, we have no basis for converting FECA’s $2,600 

per-election ceiling into a form of a $5,200 per-cycle ceiling.

While those are reasons enough to reject plaintiffs’ 

argument, their rationale would not just call for shifting a 

$2,600 per-election limit into a variant of a $5,200 per-cycle 

ceiling. Their argument would ultimately support an attack on 

contribution limits generally.

To start with, in the event of a run-off election to determine 

the winner of a party primary, a per-election cap of $2,600 

would permit total contributions of $7,800 to a candidate who 

took part in a primary, runoff, and general election. Under

plaintiffs’ argument, then, a person who made no contributions 

to a candidate before the general election should be permitted

to give at least triple the limit—i.e., $7,800, not just $5,200—

in that election. Indeed, at least one state provides for runoffs 

to determine the winners of both primary and general elections, 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 19 of 26
19

meaning that a candidate could participate in four elections in 

a single cycle. Ga. Code Ann. § 21-2-501. Donors in that state, 

under plaintiffs’ approach,should be able to contribute $10,400 

to such a candidate in the last of the four elections if they have 

made no donations to her until then.

But the logic of plaintiffs’ theory goes further still. Their 

rationale not only supports a per-cycle limit of $7,800 (or even 

$10,400) rather than $5,200, but it also has no necessary 

stopping point with a given election cycle. While plaintiffs 

may not claim an entitlement to roll over potential 

contributions from election cycle to election cycle, their theory 

could support doing so.

Consider, for instance, an incumbent congresswoman 

seeking reelection for a second term. Across her two election 

cycles, a $2,600 per-election ceiling would permit total 

contributions to her of $10,400 (or $15,600 with one runoff 

election in each cycle, or even $20,800 with two runoffs in each 

cycle). For a person who made no contributions to her in her 

first campaign, plaintiffs’ theory could call for allowing a 

contribution of $10,400 (or $15,600, or $20,800) in the second

election cycle. And the same rationale, if pushed to its extreme, 

could even encompass a single contribution of many tens of 

thousands of dollars to a candidate when taking into account

the total amounts that could be donated to her over the course 

of her (potentially decades-long) political career.

Even assuming plaintiffs’ theory need not stretch that far, 

their rationale does more than merely challenge the perelection structure of FECA’s $2,600 base contribution limit. It

calls into question the enforceability of any contribution 

ceiling, regardless of its timeframe. Plaintiffs’ theory assumes 

a contributor’s entitlement to roll over amounts that he could 

(but does not) give. If so, any contribution limit, no matter its 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 20 of 26
20

timeframe, must permit donations exceeding its cap if a person 

withholds contributions: a per-election ceiling must allow

giving double the cap in the second election, an annual ceiling 

must do the same in the second year, a per-cycle ceiling must 

do likewise in the second cycle, and so forth.

The logic of plaintiffs’ challenge therefore extends to any

contribution ceiling, not just the per-election structure chosen 

by Congress for FECA’s base contribution limits for 

individuals. Such a theory cannot be reconciled with Buckley’s 

general approval of contribution limits as adequately suited to 

combatting the appearance or actuality of corruption.

Still, a contribution ceiling’s timeframe is not entirely 

immune to challenge under the First Amendment. A limit’s 

time period, like its monetary cap, cannot give rise to a 

contribution ceiling so low as to “harm the electoral process by 

preventing challengers from mounting effective campaigns.” 

Randall, 548 U.S. at 249 (plurality opinion); see Buckley, 424 

U.S. at 21.

In Randall, the Supreme Court therefore invalidated 

Vermont’s per-cycle contribution ceilings, which ranged from 

$200 to $400 depending on the office. The plurality (and 

controlling) opinion, noting Buckley’s refusal to scrutinize the 

difference between a $1,000 and $2,000 per-election ceiling, 

observed that “ordinarily we have deferred to the legislature’s 

determination of such matters.” 548 U.S. at 248. But 

contribution limits can be “too low and too strict” if they 

“prevent candidates from ‘amassing the resources necessary 

for effective [campaign] advocacy’” or “magnify the 

advantages of incumbency to the point where they put 

challengers to a significant disadvantage.” Id. at 248 (quoting 

Buckley, 424 U.S. at 21). The per-cycle ceiling examined in 

Randall, which contained no adjustment for inflation, 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 21 of 26
21

amounted to “slightly more than one-twentieth of the limit on 

contributions . . . before the Court in Buckley.” Id. at 250. That, 

to the Court, constituted a “difference in kind” rather than just 

“in degree.” Id. at 260.

That is untrue of the $2,600 per-election contribution limit 

we consider here. Plaintiffs do not contend otherwise. They 

do not argue that the contribution ceiling is “too low” to permit 

an effective campaign. Id. at 248. That is, they “do not 

challenge the specific dollar amount Congress has chosen” for 

the per-election limit. Plaintiffs’ Opening Br. 12. 

Plaintiffs instead accept FECA’s $2,600 contribution limit 

as a given. They argue that Congress, having established a 

$2,600 per-election ceiling, must allow a contributor to treat 

that limit as if it were effectively a $5,200 per-cycle ceiling. 

For all the reasons explained, we reject plaintiffs’ First 

Amendment challenge to the statute’s per-election structure.

4.

Plaintiffs do not suggest that Congress’s choice of a perelection structure is otherwise arbitrary. Nor could they make 

any such argument.

A per-election ceiling promotes the ability of candidates to

gain adequate funding for each election in which they must 

compete. States, in exercising their constitutional authority to 

“prescribe the time, place, and manner of electing 

Representatives and Senators,” Arizona v. Inter Tribal Council 

of Ariz., Inc., 133 S. Ct. 2247, 2253 (2013), have adopted 

varying structures. A state might allow for only a single round 

of elections, it might adhere to the more conventional structure 

of a primary election followed by a general election, or it might

also provide for runoff elections. See Holmes, 99 F. Supp. 3d 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 22 of 26
22

at 132-33. A per-election ceiling enables a candidate to raise

the same level of funds for each election, regardless of the 

number of elections in which a given state’s regime might call 

for her to participate. Otherwise, for instance, a candidate 

might be left with insufficient funds with which to compete in 

a runoff election.

Relatedly, a per-election framework guards against unduly 

advantaging candidates (often incumbents) who face little 

meaningful opposition in a party primary. See Randall, 548 

U.S. at 268 (Thomas, J., concurring in the judgment). In a percycle system, an incumbent confronting no serious primary 

opponent could more readily conserve contributions for use in 

the general election, whereas an opponent who competed in a 

contested primary presumably would have expended

considerable resources to survive that stage. A per-election 

structure, by contrast, is naturally geared to enable candidates 

to raise equivalent amounts for use in the primary and general 

elections.

A per-election structure also can be understood to 

reinforce the First Amendment associational interests 

embodied in campaign contributions to a candidate. The act of 

associating with a candidate in a primary election, as compared 

with a general election, might be seen to concern distinct 

associational interests: the two elections serve a different 

purpose, involve a different field of candidates, and frequently

feature a discussion of different issues and priorities.

Congress, for such reasons, could conclude that affiliating with 

a candidate in the general election entails a different exercise

of associational interests than doing so in the primary election. 

Contributing to one candidate in the primary election and to 

another in the general election thus involves a different 

associational tie than contributing to the same candidate in 

both. That understanding coheres with a contribution ceiling 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 23 of 26
23

that operates separately with respect to each of those elections 

rather than an overarching, per-cycle ceiling that indistinctly 

envelops both.

None of this is to say that Congress was obligated to select 

a per-election structure for FECA’s base contribution limits. 

The question before us is whether Congress could choose a perelection format consistent with the First Amendment, not 

whether it had to do so. Congress’s choice in that regard was 

a constitutionally permissible one.

III.

We finally consider certain regulations promulgated by the 

Federal Election Commission and invoked by plaintiffs in 

support of their constitutional challenge to the statute. While 

those regulations permit commingling of primary-election and 

general-election contributions in certain circumstances, they do 

not undermine our conclusion that Congress could choose a 

per-election structure consistent with the First Amendment.

Plaintiffs point to two regulations. The first permits a 

contributor to make a single payment of up to $5,200 during 

the primary election, and then calls for the campaign to refund 

any amounts above the $2,600 per-election cap or set aside the 

excess funds for use in the general election (if the candidate 

advances to that stage). 11 C.F.R. § 110.1(b)(5)(ii)(B). 

Separately, the second regulation enables a campaign to 

transfer any unused primary-election funds to the general 

election. 11 C.F.R. § 110.3(c)(3). Those regulations, taken 

together, permit an individual to contribute $5,200 at the time 

of the primary election and then allow the campaign to transfer 

any or all of the funds for use in the general election.

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 24 of 26
24

Plaintiffs do not contest the constitutionality or lawfulness 

of the regulations in this proceeding. They challenge only the 

statute. And the theory of their challenge to the statute’s perelection structure does not turn on the leeway afforded by the 

regulations to transfer contributed funds from the primary to 

the general election. Plaintiffs’ argument instead is that, 

regardless of any such transfers, the First Amendment entitles 

them to contribute $5,200 to a candidate in the general election 

if they made no contribution to her in the primary. 

Plaintiffs invoke the regulations in questioning whether 

the statute’s per-election ceiling serves any meaningful interest 

given that, under the regulations, contributions in the primary 

election may be transferred and spent by the campaign in the 

general election. We are unpersuaded by plaintiffs’ reliance on 

the regulations. 

The first regulation gives a person the convenience of 

making contributions to a candidate for the primary and general 

elections in a single, up front, $5,200 payment. The contributor 

remains fully subject to FECA’s per-election ceiling of $2,600, 

but can make an advance contribution for the general election 

contemporaneously with any contribution for the primary 

election. If the candidate fails to proceed to the general 

election, the contributor is entitled to a refund of any donations 

exceeding the $2,600 limit for the primary election. See 11 

C.F.R. § 110.1(b)(5)(ii)(B)(5). That regulation thus is 

consistent with the statute’s $2,600 per-election contribution 

ceiling for individuals.

The second regulation, which permits campaigns to roll 

over unused funds, does not speak to an individual’s

contributions to a campaign. It instead pertains to the 

expenditure of contributed funds by the campaign, allowing the 

campaign to transfer unused funds from the primary election to 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 25 of 26
25

pay expenses in the general election. 11 C.F.R. § 110.3(c)(3). 

A contributor does not direct the transfer of primary-election 

funds to the general election—any decision to do so is an 

independent one on the part of the campaign.

Insofar as a campaign’s latitude to transfer funds from one 

election to the next could be perceived to impeach the integrity 

of the statute’s per-election structure, that concern would arise 

from the regulation, not the statute. And even assuming the 

regulation could be viewed to have the effect in certain 

circumstances of reshaping the statute’s per-election ceiling 

into a form of a per-cycle limit, that would not afford a basis to 

invalidate the statute under the First Amendment: a

contribution ceiling needs to contain some timeframe, and both 

a per-election and per-cycle structure, as we have seen, are 

among the constitutionally permissible options.

* * * * *

For the foregoing reasons, we reject plaintiffs’ challenge

to the per-election structure of FECA’s base contribution 

ceilings for individuals.

So ordered. 

USCA Case #16-5194 Document #1706238 Filed: 11/28/2017 Page 26 of 26