No. 12-536

In The

Supreme Court of the United States

____________

Shaun McCutcheon and Republican National

Committee, Plaintiffs-Appellants

v.

Federal Election Commission

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Reply Brief for Appellant

Republican National Committee

____________

Stephen M. Hoersting

700 E. Schantz Ave.

Dayton, OH 45419

Hoersting@gmail.com

937/623-6102

Of Counsel

August 16, 2013

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Anita Y. Woudenberg

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for Republican

National Committee
Corporate Disclosure

The Republican National Committee (“RNC”) is an

unincorporated association, so no corporations are involved.

(i)
Table of Contents

Corporate Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . (i)

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . (ii)

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . (iii)

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Aggregate Limits Fail Exacting Scrutiny,

Though Strict Scrutiny Should Apply.. . . . . . 1

II. The $74,600 Aggregate Limit on Contributions to Non-Candidate Committees Is Unconstitutional as Applied to National Party

Committees.. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Buckley’s Facial Upholding of the “Ceiling” Does Not Control this Case, but

this Court Should Apply Buckley’s Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Congress Fixed Buckley’s Posited

Conduit-Contribution Mechanism... . . . . 12

C. The $74,600 Aggregate Limit Lacks a

Cognizable Interest as Applied to National Party Committees.. . . . . . . . . . . . . 14

III. The $74,600 Aggregate Limit on Contributions to Non-Candidate Committees Is Facially Unconstitutional.. . . . . . . . . . . . . . . . . 20

IV. The $48,600 Aggregate Limit on Contributions to State Party Committees and PACs

Is Non-Severable and Should Be Struck.. . . 21

V. The $48,600 Aggregate Limit on Contributions to Candidates Is Unconstitutional... . . 22

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

(ii)
Table of Authorities

Cases

Alabama v. Smith, 490 U.S. 794 (1989).. . . . . . . . . 22

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

California Med. Ass’n v. FEC, 453 U.S. 182 (1981)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Citizens United v. FEC, 558 U.S. 310 (2010). . . . . 4, 6

Cohen v. California, 403 U.S. 15 (1971).. . . . . . . . . . 4

Davis v. FEC, 554 U.S. 724 (2008). . . . . . . . . . . . . . . 2

FEC v. Wisconsin Right to Life, 551 U.S. 449

(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

NAACP v. Button, 371 U.S. 415 (1963). . . . . . . . . . . 2

National Advertising Company v. Niagara, 942

F.2d 145 (2d Cir. 1991). . . . . . . . . . . . . . . . . . . . 22

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.

2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Jackson, 390 U.S. 570 (1968). . . . 22

Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Constitutions, Statutes, Regulations & Rules

2 U.S.C. 441a(a)(3)(A). . . . . . . . . . . . . . . . . . . . passim

2 U.S.C. 441a(a)(3)(B). . . . . . . . . . . . . . . . . . . . passim

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

Other Authorities

Robert Bauer, “Dependence Corruption” Before the

Supreme Court, More Soft Money Hard Law,

July 29, 2013, http://www.moresoftmon-

(iii)
eyhardlaw.com/2013/07/dependence-corruption.19

Robert Bauer, The McCutcheon Case and the

Contribution/Expenditure Limit Problem,

More Soft Money Hard Law, Apr. 26, 2013,

http://www.moresoftmoneyhardlaw.com/2013/

04/contributions-and-expenditures-in-campaign-finance-jurisprudence. . . . . . . . . . . . . . . . . 2

Robert Bauer, Not so “Easy”: The Futilities of the

Contribution and Expenditure Distinction,

More Soft Money Hard Law, July 31, 2013,

http://www.moresoftmoneyhardlaw.com/2013/

07/contribution-expenditure-distinction. . . . . . . . 2

Robert Bauer, The Right to “Do Politics” and Not

Just to Speak: Thinking about the Constitutional Protections for Political Action, More

Soft Money Hard Law, Apr. 26, 2013,

www.moresoftmoneyhardlaw.com/2013/

04/duke-law-speech. . . . . . . . . . . . . . . . . . . . . . . . 7

Robert Bauer, The Super PACs in the Campaign

Finance Reform Debate, More Soft Money

Hard Law, July 24, 2013, www.moresoftmoneyhardlaw.com/2013 /07/super-pacs-reform-debate.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Adriana Cordis & Jeff Milyo, Do State Campaign

Reforms Reduce Public Corruption?, April

2013, http://mercatus.org/sites/default/files/

Milyo_ CampaignFinanceReforms_v2.pdf. . . . . . 1

FEC, Matter Under Review 3620 (DSCC). . . . . 15, 18

Matea Gold, Super PACs, other independent political groups already setting pace for 2016 presidential race, Wash. Post, July 22, 2013,

http://www.washingtonpost.com/politics/sup-

(iv)
er-pacs-other-independent-political-groupsalready-setting-pace-for-2016-presidentialrace/2013/07/22/784cac46-efba-11e2-9008-61e9

4a7ea20d_story.html?wpisrc=nl_politics. . . . . . . 5

Joel M. Gora, Free Speech, Fair Elections, and

Campaign Finance Laws: Can They Co-Exist?,

56 How. L.J. 763 (2013).. . . . . . . . . . . . . . . . . . . . 7

House Conference Report, H.R. Rep. No. 94-1057

(1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-14

(v)
Argument

I.

Aggregate Limits Fail Exacting Scrutiny,

Though Strict Scrutiny Should Apply.1

A holding for Appellants does not depend on the

scrutiny level because the challenged limits fail exacting or strict scrutiny. But strict scrutiny should apply.

The same scrutiny should not apply to base and

aggregate limits because they differ in kind and the

latter impose a greater burden. RNC-Br.8-11. Unlike

base limits, aggregate limits “restrict[] . . . the number

of candidates and committees with which individuals

may associate,” Buckley v. Valeo, 424 U.S. 1, 38 (1976),

and how much one may spend on contributions. Buckley further distinguished the two by requiring a quidpro-quo risk (or its appearance2

) to justify the limit on

a direct contribution to a candidate, id. at 26, while

requiring a conduit-contribution mechanism for an

aggregate limit (showing how an intended candidate

might actually receive a conduit-contribution so as to

trigger a quid-pro-quo risk), id. at 38.

1 Appellants’ amici further address scrutiny. See Downsize DC Foundation et al. Br.; Sen. McConnell Br.4-22; Wisconsin Institute for Law & Liberty Br.; Cato Institute Br.

2 The “appearance” must be of quid-pro-quo corruption,

not general public perceptions of government, see Buckley,

424 U.S. at 26-27, yet “appearance” remains problematic.

See Institute for Justice Br. Cf. Adriana Cordis & Jeff Milyo, Do State Campaign Reforms Reduce Public Corruption?,

April 2013, http://mercatus.org/sites/default/files/Milyo_

CampaignFinanceReforms_v2.pdf(campaign-finance regulations do not ameliorate public perceptions of corruption).
2

FEC says Buckley discussed the ceiling under a

“ContributionLimitations”heading, called it “a restriction on ‘contributions,’” and referenced “‘associational

freedom.’” FEC-Br.19. By pointing to the section of

Buckley where this Court discussed the “ceiling” (a logical place for that discussion) and this Court’s accurate

description of what the ceiling restricted—while ignoring the essential distinctions this Court noted between

base and aggregate limits—FEC erroneously argues by

label. See NAACP v. Button, 371 U.S. 415, 429 (1963)

(“mere labels” cannot foreclose rights). Examining the

essence of aggregate limits reveals that “an aggregate

limit . . . smacks of a spending limit.” Robert Bauer,

The McCutcheon Case and the Contribution/Expenditure Limit Problem, More Soft Money Hard Law, Apr.

26, 2013,http://www.moresoftmoneyhardlaw.com/2013

/04/contributions-and-expenditures-in-campaign-finance-jurisprudence/.3

FEC says Buckley reviewed the “ceiling” “under . . .

scrutiny applicable to contribution limits.” FEC-Br.18-

19 (citing 424 U.S. at 38). Buckley’s page 38 is silent on

scrutiny. Buckley’s earlier assertion that a limit on a

contribution “to a candidate or political committee entails only a marginal restriction upon the contributor’s

. . . free communication,” id. at 20, addresses contributions “to” a political entity, so it applies to base limits

3 See also Robert Bauer, Not so “Easy”: The Futilities of

the Contribution and Expenditure Distinction, More Soft

Money Hard Law, July 31, 2013, http://www.moresoftmoneyhardlaw.com/2013/07/contribution-expenditure-distinction (candidate’s personal spending limit in Buckley analyzed as contribution limit by lower court, but as expenditure limit by this Court; Davis v. FEC, 554 U.S. 724 (2008),

is both a contribution case and an expenditure case).
3

(which restrict a particular contribution to an entity),

not aggregate limits (which restrict no particular contribution).

FEC says Buckley called the ceiling a “corollary” of

the base limits and aggregate limits “further the same

ultimate anti-corruptionobjective.”FEC-Br.19. Butthe

ceiling was also a base limit for contributions to PACs

and political parties—in which sense Buckley mentioned “corollary.” RNC-Br.3.4 Aggregate limits only

serve an anti-corruption interest if a conduit-contribution could be received by an intended candidate, RNCBr.25-26, which FEC fails to prove and may not assume. That need to prove receipt of an attributable contribution is why Buckley required a conduit-contribution mechanism. 424 U.S. at 38. FEC’s attempt to collapse Buckley’s conduit-contribution-mechanism requirement into an anti-corruption analysis typifies

FEC’s failure to provide the precision of analysis required for First Amendment rights.

FEC declares RNC’s assertion that aggregate limits

restrictthe number of entities individuals may support

at the full-base-level amount “misplaced.” FEC-Br.20.

FEC says what counts is symbolic support, which individuals may do for “as many entities as [they] wish[]”

at minimal levels. Id. But Buckley said the “ceiling” limited the “number of candidates and committees with

which individuals may associate.” 424 U.S. at 38. Anyway, aggregate limits also restrict how much one may

spend on contributions, even at less than base limits.

4 The “ceiling” was deemed a “corollary” and “modest

burden” in a specific statutory context where Buckley could

posit a conduit-contribution mechanism, but Congress eliminated the context and mechanism, making those descriptions inapt. RNC-Br.15-24.
4

FEC’s arguments at pages 20-23 do not alter these

facts. For example, FEC argues that McCutcheon’s

desire to contribute $1,776 checks beyond the aggregate limits is mere “symbolism” and “of marginal First

Amendment significance.” FEC-Br.21. But that does

not prove that aggregate limits do not limit the number of candidates one may support at the full base

level, and it does not prove that he is unrestricted in

the number of such checks.

5

Similarly, FEC’s argument that McCutcheon may

make independent expenditures and volunteer remotely, FEC-Br.21-23, neither proves he is unlimited

in the number of candidates he can support at desired

levels nor solves his problem with making intended

contributions. Telling McCutcheon to buy ads and volunteer—instead of making constitutionally protected

contributions—is like telling Cohen to get a shirt with

a different anti-draft message. See FEC v. Wisconsin

Right to Life, 551 U.S. 449, 477 n.9 (2007) (“WRTL-II”)

(controlling opinion) (citing Cohen v. California, 403

U.S. 15 (1971)) (rejecting notion that options vitiate

constitutional protection for preferred activity). It is

like telling Citizens United that, instead of doing electioneering communications, it can avoid the electioneering-communications definition (by not broadcasting

its message or broadcasting outside blackout periods)

or let a PAC speak instead. See, e.g., Citizens United v.

FEC, 558 U.S. 310, 337 (2010) (“PAC . . . does not allow

corporation[]to speak”). See also Sen. McConnell Br.13

(“Speech by the candidate, paid for with contributions

5 FEC says “McCutcheon does not suggest” his intended

contributions “wouldhave meaningfully enhanced the candidate’s electoral prospects or ability to communicate his message.” FEC-Br.20. Appellants have no burden to prove that.
5

from supporters, is far more effective than the independent speech of a supporter.” (citation omitted)).

FEC says to disregard the fact that candidates and

political parties are increasingly being disadvantaged

vis-a-vis super-PACs (not subject to aggregate limits).

FEC-Br.22 n.3 (citing Cato Inst. Br.14-15).6 This growing disadvantage goes to Buckley’s scrutiny dichotomy

because it shows that it is no longer true “that the contribution limitations . . . have [no] dramatic adverse

effect on the funding of campaigns and political associations,” Buckley, 424 U.S. at 21. RNC-Br.12-13. Cato’s

brief highlights the public-policy choice at issue here:

encouraging money to flow to traditionally favored political parties, which are accountable and transparent

and which resist polarization, or to super-PACs and

other groups, which are less accountable and transparent and which are more polarizing. See Cato Inst. Br.

13-15. This growing disadvantage is a growing burden

on First Amendment rights, which requires stricter

scrutiny, while reducing the incentive to circumvent

contribution limits. See Cause of Action Br.24-30.

7

6 See Matea Gold, Super PACs, other independent political groups already setting pace for 2016 presidential race,

Wash. Post, July 22, 2013, http://www.washingtonpost.

com/politics/super-pacs-other-independent-political-groupsalready-setting-pace-for-2016-presidential-race/2013/07/2

2/784cac46-efba-11e2-9008-61e94a7ea20d_story.html?wpi

src=nl_politics.

7

It is not inconsistent to argue that (a) pooling money

with a candidate to fund the candidate’s own speech is more

effective than independent speech and (b) the ability to pool

money in a super-PAC advocating for that candidate alleviates pressure to circumvent limits with illegal conduit-contributions. People readily do something less effective, but
6

FEC’s three attempts to argue against the implications of the growing disadvantage of political parties

and candidates vis-a-vis super-PACs and other groups

miss the mark. First, FEC says “advocacy groups can

as easily support a candidate as oppose a candidate.”

FEC-Br.22 n.3. That is not the candidate’s own message, and Buckley held that “independent expenditures

may well provide little assistance to the candidate’s

campaign and indeed may prove counterproductive.”

424 U.S. at 47. See also Citizens United, 558 U.S. at

357 (same).

Second,FEC says “contributions to candidates present corruption concerns that contributions to advocacy

groups do not.” FEC-Br.22 n.3. It is true that contributions to candidates involve a quid-pro-quo-corruption

risk, Buckley, 424 U.S. at 26, that other contributions,

e.g., to political parties, must be justified by a conduitcontribution risk, id. at 38, and that super-PACs pose

neither corruption nor conduit-contribution risks and

so are not subject to base and aggregate limits, SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 553 (2010). But these differing interests

do not justify political parties and candidates being

disadvantaged by aggregate limits for which the government proves no conduit-contribution mechanism.

Third, FEC says “Congress is not required to level

the playing field to assure that candidates (or parties)

can raise the same amount of money as advocacy

groups.” FEC-Br.22 n.3. RNC argues no such requirement. But this Court recognizes the need for candidates and parties to “amass[] the resources necessary

for effective advocacy.” Buckley, 424 U.S. at 21. Effeclegal, instead of something more effective, but illegal, wanting to be legal though preferring to be more effective.
7

tiveness of advocacy is relative to the volume of competing voices. Effectiveness requires sufficient resources for candidates and political parties to get their

own message out competitively. That relative ability is

currently disadvantaged. Thus, this Court’s scrutiny —

which historically looks to the degree of burden—

should be informed by the problems now wrought by

aggregate limits.8, 9

Finally,this is a proper case to reverse Buckley’s expenditure/contributionscrutiny dichotomy,RNC-Br.11;

McCutcheon-Br.32 n.17, and extend full protection to

“doing politics,” see Robert Bauer, The Rightto “Do Politics” and Not Just to Speak: Thinking about the Constitutional Protections for Political Action, More Soft

Money Hard Law, Apr. 26, 2013, www.moresoftmoneyhardlaw.com/2013/04/duke-law-speech. Appellants’

8 Regarding “an answer to super PACs,” “[w]hat may be

needed is a more measured, creative course that . . . facilitates more speech and participation where the resources

are harder to come by,” e.g., “by freeing up resources, such

as for grassroots mobilization and political parties.” Robert

Bauer, The Super PACs in the Campaign Finance Reform

Debate, More Soft Money Hard Law, July 24, 2013, www.

moresoftmoneyhardlaw.com/2013 /07/super-pacs-reform-debate. See also Joel M. Gora, Free Speech, Fair Elections,

and Campaign Finance Laws: Can They Co-Exist?, 56 How.

L.J. 763, 780 (2013) (super-PACs are good but raise the

“valid concern . . . that two of the most important actors in

the political process—the candidates and the parties—are

much more limited in their funding rights”).

9 Strict scrutiny also applies because the speech burden

is cognizable and substantial-burden analysis requires it.

See RNC-Br.12-14. FEC does not address these arguments.
8

amici explain why.

10

However, even if this Court does not apply strict

scrutiny or overrule Buckley’s dichotomy,the aggregate

limits are unconstitutional under exacting scrutiny.

II.

The $74,600 Aggregate Limit on Contributions to

Non-Candidate Committees Is Unconstitutional

as Applied to National Party Committees.

Appellants challenge the $74,600 aggregate limit as

applied to national party committees. RNC-Br.14-52.

And the challenge to the aggregate limits on contributions to candidates is in the nature of an as-applied

challenge, in relation to Buckley’s facial upholding of

the blanket “ceiling.” See infra II.A, V. 

Yet FEC argues as if this were primarily a facialchallenge case and says “Buckley forecloses Appellants’

challenge to the aggregate limits.” FEC-Br.43. This is

a version of FEC’s attemptto evade an as-applied challenge in Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) (“WRTL-I”). This Court unanimously held: “In

upholding [the ban] against a facial challenge, we did

not purport to resolve future as-applied challenges.” Id.

at 411-12. Buckley’s facial upholding of the “ceiling”

does not foreclose the present as-applied challenges.

As in WRTL-I, the lower court here granted FEC’s

motion “to dismiss this case for failure to state a claim

on which relief can be granted.” Mot. Dismiss 1. FEC

put in no evidence, arguing for dismissal as a matter of

law based on Buckley’s purported foreclosure of these

as-applied challenges. So RNC objects to FEC’s effort

10 See Cato Inst. Br.9-24; Downsize DC Foundation et al.

Br.4-12 Sen. McConnell Br.4-22; Wisconsin Institute for

Law & Liberty Br.
9

now to submit “evidence.” See, e.g., FEC-Br.53-54. Anyway, FEC’s news articles reporting violations of campaign-finance laws do not prove any cognizable risk of

a true “conduit-contribution,” which must result from

legal activity. See RNC-Br.2 n.1 (definition), 49-51.

Tales of illegal activity involving quid-pro-quo corruption do not satisfy FEC’s burden, though they provide

evidence of the prophylaxes working.

A. Buckley’s Facial Upholding of the “Ceiling”

Does Not Control this Case, but this Court

Should Apply Buckley’s Analysis.

Buckley’s facial holding does not control here because (a) this is an as-applied challenge, (b) Congress

materially altered the statutory context necessary to

Buckley’s holding, and (c) Congress repealed the old

ceiling and replaced it with multiple aggregate limits.

RNC-Br.15-16.

Regarding the as-applied nature of the challenges

here, RNC’s Question 1, says the challenge to the

$74,600 limit is “as applied to contributions to national

party committees.” RNC-Br.i. Question 4 challenges

the limit on contributions to candidates as simply “unconstitutional” because that limit applies only to contributions to candidates. Under Buckley’s facial upholding of the unified “ceiling,” this challenge would have

been as applied to contributions to candidates, so in

relation to Buckley it is in the nature of an as-applied

challenge.

Thus, regarding Questions 1 and 4, a precise analysis required FEC to make only arguments involving

contributions to national party committees and candidates respectively, not any effect of contributions without aggregate limits to PACs or state/local parties.

RNC made this clear, RNC-Br.32 & n.24, 42 & n.33,
10

thoughFEC disregards it by making broad-brushfacial

arguments. FEC concedes its facial focus by saying,

“[i]n addition to asserting facial challenges to BCRA’s

aggregate limits, the RNC argues . . . that the aggregate limit . . . is unconstitutional as applied to contributions received by national party committees.” FECBr.54-55.

11

Buckley’s facial upholding of the old “ceiling,” does

not resolve the as-applied challenges here (nor the

overbreadthor severability issues). And FEC’s analysis

of as-applied challenges as a facial challenge lacks the

precise analysis required for analyzing laws burdening

protected political activity. See Buckley, 424 U.S. at 16

(“the exacting scrutiny required by the First Amendment”).

However, though Buckley’s facial upholding of the

old ceiling does not control here, this Court’s analysis

regarding the old “ceiling” should guide the present

analysis, with careful attention to what Buckley required. RNC-Br.15-18, 25-26, 31-32. Buckley did not recite a generalized concern with corruption as justifying

the ceiling. It precisely focused on something more specific. As applied to national party committees, that focus was on whether a conduit-contribution mechanism

exists that permits “evasion of the [base] contribution

limitation by a person . . . contribut[ing] massive

amounts of money to a particular candidate through

the use of unearmarked[,] . . . huge contributions to the

candidate’s [national] political party [committee(s)].”

424 U.S. at 38. That requires consideration of three

11 FEC’s argument regarding the as-applied challenge,

FEC-Br.55, fails to prove that contributing the base limit to

national-party committees poses a cognizable conduit-contribution risk.
11

questions from Buckley’s analysis:

• Is political-committee proliferation by national party committees possible?

• Can a “huge contribution” be made to a national

party committee?

• Can a national party committee be a vehicle for a

“massive” conduit-contribution to an intended, particular candidate?

RNC-Br.32.

Given Buckley’s precise focus, FEC is wrong in saying that absent an aggregate limit contributors could

still“‘contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to

that candidate, or huge contributions to the candidate’s

political party.’” FEC-Br.35 (citation omitted).

FEC is wrong because (inter alia) in the present

challenge as applied to national party committees, no

cognizance may be taken of “contributions to political

committees likely to contribute to that candidate,”

Buckley, 424 U.S. at 38, beyond the allowable $48,600

limit for contributions to PACs and state/local parties

(at which level Congress is satisfied as to any interests).12 And the analysis must focus precisely on “contributions to the candidate’s political party,” id. at 38,

which, as applied, must focus only on contributions to

national party committees.

FEC must demonstrate that if an individual gives

between $74,600 per biennium (current aggregate li12 FEC is also wrong because it fails to show how a cognizable contribution actually reaches a candidate through

the many prophylaxes existing without aggregate limits.

See RNC-Br.26-52. See infra II.C.
12

mit) and $194,400 per biennium ($32,400/year to three

national party committees), these unearmarked contributions are “huge” and pose a cognizable risk of a resulting “massive” conduit-contribution to an intended

candidate despite existing laws designed to eliminate

that risk.

B. Congress Fixed Buckley’s Posited ConduitContribution Mechanism.

The post-Buckley FECA amendments put a base

limit on contributions to national party committees.

RNC-Br.19-24. So a “huge” contribution to a national

party committee is no longer possible and thusno “massive” conduit-contribution to an intended candidate

through a national party committee is possible. And

proliferation of committees by the same persons is not

an issue with national party committees as there are

only three per political party.13

FEC concedes that “those additional base limits

may reduce circumvention of the base limits on contributions to candidates in certain ways, see California

13 FEC says Buckley did not mention such proliferation

at page 38 of the opinion and that “FECA does not limit the

number of political committees that may exist.” FEC-Br.46

(emphasis added). But (a) Buckley mentioned the concern

earlier in that opinion, (b) this Court focused on the problem caused by PAC-proliferation by the same entities, and

(c) the 1976 Conference Report specifically identified this

proliferation problem and said Congress fixed it. RNCBr.32-34. Buckley’s concern with PAC proliferation may

have caused the Court to envision a person giving the permitted $1,000 to a candidate, then creating, e.g., fifty

single-candidate PACs for the purpose of giving the permissible $1,000 to each and using each PAC to contribute the

permissible $1,000 contribution to the candidate.
13

Med. Ass’n v. FEC, 453 U.S. 182, 198 n.18 (1981),” but

then asserts that “they do not make the scheme described in Buckley materially harder to execute.” FECBr.48. FEC’s efforts to avoid its concession are unavailing for two main reasons.

First, FEC’s passing reference to Cal. Med.’s “n.18”

does injustice to that footnote, which quotes the 1976

Conference Report that said post-Buckley base “limits

restrict the opportunity to circumvent the $1,000 and

$5,000 limits on contributions to a candidate.” Though

Cal. Med. relied on this Report, the Report is vital legislative history, and RNC discussed it prominently,

RNC-Br.21-24, FEC mentions it only as “n.18.” Yet,the

Report states Congress’s view that the FECA amendments fixed Buckley’s posited conduit-contribution

mechanism.

Second, FEC says that Buckley’s mechanism didn’t

really rely on the things Buckley said it relied on, such

as “huge” contributions to a political party, but “on the

ability of contributors to find various conduits through

which unearmarked funds can reach a candidate.”

FEC-Br.48. But Buckley justified the “ceiling” as applied to political parties precisely on the potential for

“massive” contributions to anintended,“particular candidate” by means of “huge contributions to the candidate’s political party.” Id. at 38. Buckley isolated that

mechanism from one involving PACs with a disjunctive

“or.” Id. If FEC really wants to argue that Buckley was

wrong in justifying the “ceiling” (as it would apply

here)—which FEC seems to do—it may do so (with attendant ramifications for its other arguments). But

simply applying Buckley’s analysis, as RNC does, readily shows that Buckley’s posited mechanism is no longer possible. So FEC may not simply dismiss the now-
14

absent “huge contributions” element of this Court’s

mechanism in this as-applied challenge. Also, the

search for “conduits” is limited in this as-applied challenge, excluding contributions to PACs and state/local

parties. And since the Conference Report says Congress fixed Buckley’s conduit-contribution mechanism,

FEC will have difficulty showing one.

C. The $74,600 Aggregate Limit Lacks a Cognizable Interest as Applied to National Party Committees.

FEC asserts a “circumvention technique.” FEC-Br.

35. Thus, it concedes it must prove a mechanism. Its

“technique” is contributing “to many different entities,

each of which could then make its own contributions to

the candidate.” Id. The “could” is a fatal flaw, but first

note the suggested entities.

FEC suggests using numerousPACs and candidates

as conduits. FEC-Br.35-36. The only entities properly

part of the present analysis are national party committees, and FEC makes no attempt to prove a “technique”

only as to them.

FEC says entities it mentions might write a “single

check” to a “joint fundraising committee.” FEC-Br.37.

These proposed elements of a purported conduit have

already been refuted. See RNC-Br.47. See also NRSC

& NRCC Br. (aggregate limits do not govern party-candidate relations and joint fundraising committees are

not a means of circumventing contribution limits).

FEC’s repeated use of “could” in its “circumvention

technique” is a fatal flaw, as is its assertion that

“[t]hese entities would then have considerable discretion to funnel . . . money to . . . candidates.” FEC-Br.37

(emphasis added). This is the same speculation that

RNC already highlighted and exposed as erroneous
15

analysis. RNC-Br.40-42, 48-51. And it is foreclosed by

FEC’s acknowledgment in MUR 3620 (DSCC) that unearmarked contributions do not bind a national party

committee—even where a tally system exists—and so

are non-cognizable as conduit-contributions. RNCBr.41-42, 49 n.37. FEC’s attempted evasion of MUR

3620, FEC-Br.45 n.6, ignores the MUR’s underlying

analysis.

Even under FEC’s theory—that an individual giving to many entities “could” result in a contribution to

a candidate somehow attributable to that individual—

FEC fails to prove its case. FEC suggests conduit by

candidate or leadership PAC, even providing some contribution totals. FEC-Br.38-39.14 If FEC’s “technique”

works, there should be many examples of it, but FEC

fails to show even one individual giving to many candidates and leadership PACs with resulting conduit-contributions to a particular candidate.15 That is what

FEC needed to show under its theory. It did not.

14

 Candidates are applicable only to Part V arguments,

but as shown there they provide no cognizable conduit-contribution mechanism.

15 FEC also fails to prove any joint fundraising committees comprising all (or even most) political party committees or candidates, as it suggests could be possible mechanisms. FEC-Br.37. See also Campaign Legal Center et al.

Br.13-15 (providing examples of joint fundraising committees, none of which comprised all (or even most) political

party committees or candidates). This failure to provide

evidence of purported mechanism reveals them to be mere

speculation. Such all-or most-entities events are unlikely

given the separate interests of the entities involved. This

failure of evidence also discredits the supposed “iron rule”

that “whatever may lawfully be done will be done.” Americans for Campaign Finance Reform Br.3.
16

FEC says it was “not . . . significantly easier to

[make conduit-contributions] when Buckley was decided than . . . now” because there were limits on what

political committees (e.g., party committees) could contribute, i.e., $5,000/election for multicandidate committees, $1,000/election for others. FEC-Br.47. FEC thus

concedes the bottleneck problem that, with other prophylaxes, makes a cognizable conduit-contribution impossible.16 RNC identified this problem in the Jurisdictional Statement(p.23), explaining that even if numerous contributors try to use a political committee as a

conduit to get pro-rata contributions to a candidate,

there is the barricade of the limit on contributions to a

candidate. For example, if a $5,000 per candidate per

election contribution has already been made by a party,

then no matter how many contributors give in the hope

of triggering a contribution to the candidate, no more

can go to the candidate. The limits on contributions to

and by political committees eliminate any cognizable

circumvention risk.

Buckley said that, despite this known bottleneck, a

“huge” contribution to a political party created a cognizable risk of a “massive contribution[]” traveling from

an individual, through the party, to an intended, “particular candidate.” 424 U.S. at 38. FEC now says Buckley’s analysis upholding the “ceiling” was wrong because of the bottleneck problem. But without needing

to decide that question, simply applying Buckley’s

16 FEC’s amici also concede the bottleneck problem.

Campaign Legal Center et al. Br.27. These amici also allege

that Appellants recited a flawed FECA history by saying

that name-of-another and earmarking provisions were enacted after Buckley. Id. The parts of Appellants’ briefs amici

cite show this is not so.
17

analysis, coupled with the 1976 FECA amendments,

reveals that individuals may no longer make a “huge”

contribution to a national party committee—so Buckley’s “ceiling” justification is gone.

Regarding that $5,000 bottleneck and FEC’s theory,

FEC needed to prove that there is a significant number

of entities (though only national party committees are

properly at issue here) likely to contribute to a candidate, where the entity

(a) does not already have $5,000 to make a contribution to a candidate that it wants to give to and

(b) has not already made the permitted $5,000 contribution to that candidate.

That situation would be necessary for FEC’s argument

that giving to a political party or PAC might trigger a

$5,000 contribution to a candidate. Though the bottleneck has existed for decades, FEC does not show even

one instance of this situation occurring. Under FEC’s

theory, there must be many.

Moreover, state parties (though notinvolved in this

as-applied challenge), like national political parties,

typically have considerable funds (far beyond $5,000),

so they would likely already have contributed to a favored candidate.

Even if an individual’s contribution to a state party

could trigger a $5,000 contribution to a candidate, only

one lucky person could do that because of the bottleneck problem. And an individual would experience considerable difficulty in locating “likely” entities that

lacked money to contribute to a favored candidate and

had not already contributed.

FEC also needed to prove that individuals are giving to many such entities in hopes of triggering a con-
18

tribution to an intended candidate. If FEC’s “technique” actually works,there should be many examples

of this. FEC proved none.

In the foregoing analysis, RNC has talked of what

would be necessary under FEC’s analysis to “trigger”

a contribution. But even if a contribution were “triggered” when an individual contributed to an entity

(wanting to contribute to a candidate) that had not

already made a contribution to the candidate and

lacked the money to do so, that “triggered” contribution

would not be a conduit-contribution because there

would be no cognizable attribution to the individual.

Given MUR 3620 (DSCC), if a contribution to a national party committee is not earmarked, any triggered

contribution is not attributable to that individual as a

conduit-contribution because the entity could have

done something else with the contributionreceived.See

supra at 15. And even if a contribution to a candidate

could somehow be deemed attributable to an individual

who made an unearmarked contribution to a national

party committee, any contribution to and by the national party committee would have to be attributed on

a pro-rated basis. RNC-Br.28. Under proration, the

amount of a national party committee’s contribution to

a candidate attributable to an unearmarked contribution from an individual would be a small fraction of the

national party committee’s receipts and of the contribution to the candidate. Id. Proration yields tiny, noncognizable amounts concerning contributions to and by

national party committees, which have large amounts

of receipts and disbursements. FEC fails to even mention proration, which applies to all purported conduits.

FEC suggests a problem with “direct solicitations

from the President and Members of Congress,” FEC-
19

Br.40, though it fails to explain how who solicits establishes a cognizable conduit-contribution mechanism or

how a solicitor-corruption theory would not necessarily

rely on a forbidden gratitude, access, or influence theory of “corruption.” But if Congress deems “solicitation”

a conduit-contribution issue, it must narrowly regulate

solicitation, as it did regarding soft money, see, e.g., 2

U.S.C. 441i(d), instead of imposing onerous burdens on

core First Amendment rights.

RNC argued that Congress asserted its anti-conduit-contribution and anti-corruption interests only as

far as the limits on contributions to and by national

party committees, RNC-Br.36,17 and that it asserted no

interest regarding transfers. RNC-Br.48. FEC says this

could have been argued against Buckley’s ceiling. FECBr.50. But Buckley posited a conduit-contribution

mechanism based on Congress’s non-assertion of interests as to base limits that were added after Buckley

and it made no mention of transfers. Buckley’s posited

mechanism is gone. FEC may not conjure another with

transfers, especially since Congress expressly excluded

transfers from the “contribution” definition after Buckley.

18

17 That Congress “balanc[ed] . . . objectives” in setting

base levels, FEC-Br.51, does not alter this. If on balance,

Congress decided to assert its anti-conduit interest at

$32,400/year for a contribution to a national party committee, then contributing to three national party committees

yearly at that safe level creates no governmental interest.

18 Making unearmarked contributions to entities who

might transfer funds to others who might contribute to a

candidate is not inherently corrupting because it is possible

now, under current limits, and Congress asserts no anticorruption or anti-circumvention interest by regulating it.
20

Thus, the only remaining “justification” for the

challenged aggregate limits is the forbidden equalizing

interest. RNC-Br.44. FEC argues an out-of-context

“equalizing” quote from Buckley, FEC-Br.56, that Appellants already refuted, Br. Opposing Mot. Dismiss or

Affirm 9-10. Buckley noted that the government asserted an equalizing interest for the base limit on contributions to candidates, which Buckley did not reach

because the anti-corruption interest sufficed. 424 U.S.

at 26. Buckley added that base limits “alone would not

reduce the greater potential voice of affluent persons

and well-financed groups, who would remain free to

spend unlimited sums directly to promote candidates

and policies they favor in an effort to persuade voters.”

Id. at n.26. Buckley did not say that aggregate limits

cannot be employed to pursue an equalizing interest.19

III.

The $74,600 Aggregate Limit on

Contributions to Non-Candidate Committees

Is Facially Unconstitutional.

Given the unconstitutionality of the $74,600 limit

as applied to national party committees, it is also facially unconstitutional based on its substantial overbreadth. RNC-Br.52. FEC’s arguments regardingPACs

19 Professor Lessig’s brief argues “dependence corruption,” an equalizing theory. Professor Richard Hasen provides links to his ongoing arguments with Lessig to this

effect at http://electionlawblog.org/?p=49937. See also Robert Bauer, “Dependence Corruption” Before the Supreme

Court, More Soft Money Hard Law, July 29, 2013, http://

www.moresoftmoneyhardlaw.com/2013/07/dependence-corruption/ (critiquing Lessig brief). However the Founders

perceived “corruption,” they forbade abridging speech, U.S.

Const. amend. I, and pooling money to amplify speech.
21

and state and local parties are irrelevant to the as-applied challenge, and they are improper as to the First

Amendment overbreadth challenge.20

FEC says an overbreadth argument should fail—

not based on the breadth of contributions to national

party committees—but because Buckley rejected an

overbreadth challenge. FEC-Br.52. That challenge was

to the base limit because “most large contributors do

not seek improper influence . . . .” Buckley, 424 U.S. at

29. Buckley’s holding says nothing as to whether contributions to national party committees are a substantial part of overall contributions for overbreadth analysis, which they are. RNC-Br.52.

IV.

The $48,600 Aggregate Limit on Contributions

to State Party Committees and PACs Is NonSeverable and Should Be Struck.

RNC demonstrated with strikeout text that, if the

$74,600 limit is held unconstitutional, the remainder

of 2 U.S.C. 441a(a)(3)(B) is meaningless, so Congress

could not have intended the limit and sub-limit to be

severable. RNC-Br.52-53.

FEC asserts “BCRA’s severability clause” without

addressing this meaningless-remainder problem. FECBr.55 n.9. A severability clause is not dispositive in

20

 However, even if including PACs and state/local parties were a proper analysis, the aggregate limits remain unjustified because of the post-Buckley FECA amendments

establishing new base limits and restricting political-committee proliferation by the same entities and because FEC

fails to prove a cognizable conduit-contribution risk in light

of existing prophylaxes absent the aggregate limit. See, e.g.,

McConnell Br.36-37.
22

such a situation. See United States v. Jackson, 390 U.S.

570, 585 n.27 (1968) (severability rarely turns on

severability clause), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989); National Advertising Company v. Niagara, 942 F.2d 145, 148 (2d Cir.

1991) (clause not dispositive).

V.

The $48,600 Aggregate Limit on Contributions

to Candidates Is Unconstitutional.

The aggregate limit on contributions to candidates

is unsupported by the requisite conduit-contribution

mechanism. RNC-Br.53-59. This limit must be considered on its own merits—without reference to contributions to PACs and political parties—because (a) Congress isolated this limit in BCRA, (b) Buckley did not

even suggest that candidates might pose a cognizable

conduit-contribution risk, and (c) in relation to Buckley’s facial “ceiling” holding, this is in the nature of an

as-applied challenge, see supra at 8-11.

FEC says, absentthe aggregate limit, an individual

could give the base limit to all House and Senate candidates, maybe even in a “single check” to a “joint fundraising committee.” FEC-Br.37. And FEC says candidates can contribute limited amounts to other candidates, and some do, and they can make transfers to

political parties. FEC-Br.38-39. But FEC fails to provide evidence of any joint fundraising committees comprising all (or even most) candidates, or of an individual contributing to many candidates with a resulting

conduit-contributionto anintended candidate attributable to that individual. If FEC’s technique works,there

should be many. FEC proves none. FEC fails to prove

a cognizable conduit-contribution risk from this lawful

activity, given the prophylaxes in place absent aggre-
23

gate limits. RNC-Br.34-52, 53-59. RNC adopts the further arguments for this challenge in the McCutcheon

Reply Brief.

Conclusion

This Court should hold for Appellants. RNC-Br.60.

Stephen M. Hoersting

700 E. Schantz Ave.

Dayton, OH 45419

Hoersting@gmail.com

937/623-6102

Of Counsel

August 16, 2013

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Anita Y. Woudenberg

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for RNC