No. 12-536 444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States ____________________

SHAUN MCCUTCHEON, ET AL., Appellants,

v.

FEDERAL ELECTION COMMISSION, Appellee. ____________________

On Appeal from the United States District Court

for the District of Columbia ____________________

Brief Amicus Curiae of Downsize DC

Foundation, DownsizeDC.org, Free Speech

Coalition, Inc., Free Speech Defense and

Education Fund, U.S. Justice Foundation, Gun

Owners Foundation, Gun Owners of America,

Inc., English First, English First Foundation,

Lincoln Institute for Research and Education,

Abraham Lincoln Foundation, Institute on the

Constitution, Western Center for Journalism,

Policy Analysis Center, Conservative Legal

Defense and Education Fund, Libertarian

National Committee, Inc. and Constitution

Party National Committee in Support of

Appellants ____________________ MICHAEL CONNELLY WILLIAM J. OLSON*

U.S. JUSTICE FOUNDATION HERBERT W. TITUS

932 D Street JEREMIAH L. MORGAN

Suite 2 JOHN S. MILES

Ramona, CA 92065 ROBERT J. OLSON

Attorney for U.S. Justice WILLIAM J. OLSON, P.C.

Foundation 370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615

(703) 356-5070

*Counsel of Record wjo@mindspring.com

May 13, 2013 Attorneys for Amici Curiae

444444444444444444444444444444444444444444
TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT ..................... 2

ARGUMENT

I. THE AGGREGATE LIMITS ON INDIVIDUAL

ELECTORAL CONTRIBUTIONS ARE BASED UPON

THE UNCONSTITUTIONAL DISTINCTION

BETWEEN CONTRIBUTIONS AND EXPENDITURES

DRAWN IN BUCKLEY V. VALEO ............... 4

A. Buckley Wrongly Distinguished Electoral

Contributions from Electoral Expenditures,

Granting Them Lesser Constitutional

Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The Buckley Distinction Between

Contributions and Expenditures Conflicts

With Citizens United .................. 9

C. The Aggregate Limit on Contributions to

Political Campaigns and Parties Violates

the Right of the People to Assemble and to

Petition the Government for Redress of

Grievances . . . . . . . . . . . . . . . . . . . . . . . . . 13

II. THIS COURT SHOULD NOT DEFER TO

INCUMBENT LAWMAKERS IN SETTING THE

RULES GOVERNING THE FINANCING OF

CAMPAIGNS WAGED TO UNSEAT THEM . . . . . . . 18
ii

A. The District Court Erroneously Accepted

the Premise that the Congressional

Purpose Stated in the Federal Election

Campaign Act is Benign and Accurate . . . 18

B. Courts Have An Obligation to Do More

than Just Recognize the Risk of Campaign

Finance Laws Being Written to Favor

Incumbents . . . . . . . . . . . . . . . . . . . . . . . . . 23

C. Rather than Defer to the Political

Branches, the Federal Judiciary has a

Duty to Protect the Prerogatives of The

People to Remove Incumbent Office

Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III. The Aggregate Contribution Limits

Conflict with the Categorical Principle

Applied in Citizens United . . . . . . . . . . . . . 29

A. The Lower Court Erroneously Relied on

Supreme Court Decisions Preceding

Citizens United . . . . . . . . . . . . . . . . . . . . . . 29

B. Citizens United Embraced a Categorical

Approach to First Amendment Rights for

Different Speakers, Rejecting Judicial

Interest Balancing . . . . . . . . . . . . . . . . . . . 30

C. The Court Should Return to the Text of the

First Amendment to Determine the

Constitutionality of the Aggregate

Contribution Limits . . . . . . . . . . . . . . . . . . 35
iii

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
iv

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Article III, Section 1 . . . . . . . . . . . . . . . . . . . . . . . 28

Article VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 3, passim

STATUTES

2 U.S.C. § 437g(d) . . . . . . . . . . . . . . . . . . . . . . . . . 14

CASES

American Tradition Partnership, Inc. v. Bullock, 

567 U.S. ___, 132 S. Ct. 2490 (2012) . . . . . 32, 33

Arizona Free Enterprise Club’s Freedom Club

PAC v. Bennett, 131 S. Ct. 2806 (2011) . . . . . 35

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) . . . . . . . . . . . . . 3, 11, 31, 32

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . 3, passim

Citizens United v. FEC, 558 U.S. 310, 130 

S.Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . 3, passim

CSC v. Letter Carriers, 413 U.S. 548 (1973) . . . . 15

DeJonge v. Oregon, 299 U.S. 353 (1937) . 13, 14, 16

Edwards v. South Carolina, 372 U.S. 229 (1963) 17

First National Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . 11

Heller v. District of Columbia, 554 U.S. 570 

(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39

Korematsu v. United States, 323 U.S. 214 (1944) 38

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . 24, 31

McCulloch v. Maryland, 17 U.S. 316 (1819) . . . . 36

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) . . . . . . . . . . . . . . . . . . . . . 24
v

Thomas v. Chicago Park District, 534 U.S. 

316 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Cruikshank, 92 U.S. 542 (1875) 13

Western Tradition Partnership, Inc. v. Attorney

General, 363 Mont. 220, 271 P.3d 1 (2011) . . . 32

MISCELLANEOUS

R. Bauer, “Campaign Finance After McCainFeingold,” 153 U.PENN. L.R. 5 (2004) . . . . 25, 27

Campaign Finance Institute, Early Post-Election

Look at Money in the House and Senate 

Elections of 2012 (Nov. 9, 2012) . . . . . . . . . . . 21

J. Campbell & S. Jurek, The Decline of 

Competition and Change in Congressional 

Elections (2003) . . . . . . . . . . . . . . . . . . . . . . . . 21

Confession of Error: The Solicitor General’s

Mistakes During the Japanese-American

Internment Cases, Neal Katyal (Mar. 20,

2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

A. Hamilton, Federalist No. 78 . . . . . . . . . . . . . . . 28

H. Linde, “Who Must Know What, When, and 

How: The Systemic Incoherence of ‘Interest’

Scrutiny,” printed in Public Values in

Constitutional Law (S. Gottlieb, ed.) (Univ.

of Mich. Press 1993) . . . . . . . . . . . . . . . . . . 36, 37

“The Top 10 Things Every Voter Should Know 

About Money-in-Politics,” Open Secrets.org . . 19

Thirty-Thousand.org, “Reelection Rates of

Incumbents in the U.S. House, First 

through 108th Congress,” . . . . . . . . . . . . . . 26, 27

St. George Tucker, Views of the Constitution of

the United States (Liberty Fund: 1999) . . . . . 17

G. Will, “The Poet Who Took on LBJ,” 

Washington Post (Dec. 13, 2005) . . . . . . . . . . . 22
vi

G. Will, “Korematsu and the dangers of waiving

constitutional rights,” Washington Post 

(Apr. 24, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 38
1

 It is hereby certified that counsel for the parties have consented

to the filing of this brief; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

INTEREST OF THE AMICI CURIAE1

Amici Downsize DC Foundation, Free Speech

Defense and Education Fund, U.S. Justice Foundation,

Gun Owners Foundation, English First Foundation,

The Lincoln Institute for Research and Education,

Western Center for Journalism, Policy Analysis

Center, and Conservative Legal Defense and

Education Fund are nonprofit educational

organizations, exempt from federal income tax under

section 501(c)(3) of the Internal Revenue Code (“IRC”).

Amici DownsizeDC.org, Free Speech Coalition, Inc.,

Gun Owners of America, Inc., English First, and

Abraham Lincoln Foundation are nonprofit social

welfare organizations, exempt from federal income tax

under IRC section 501(c)(4). Institute on the

Constitution is an educational organization. Amici

Libertarian National Committee, Inc. and Constitution

Party National Committee are national political

parties. 

Each of these amici have filed amicus curiae briefs

in this and other courts, and each is interested in the

proper interpretation of state and federal constitutions

and statutes. Various of these amici have filed briefs

in several prior campaign finance cases in this Court:

Jeremiah W. Nixon v. Shrink Missouri Government
2

2

 http://lawandfreedom.com/site/election/shrinkpac.html.

3

 http://lawandfreedom.com/site/election/Beaumont.pdf.

4

 http://lawandfreedom.com/site/election/WRTL%20II%20amicus

.pdf.

5

 http://lawandfreedom.com/site/election/CU_amicus.pdf.

6

 http://lawandfreedom.com/site/election/AFEC_Amicus.pdf.

7

 http://lawandfreedom.com/site/election/DanielczykvUS_Amicus

.pdf.

PAC, 528 U.S. 377 (2000).2

FEC v. Christine Beaumont, et al., 539 U.S. 146

(2003).3

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007).4

Citizens United v. FEC, 558 U.S. 310 (2009).5

Arizona Free Enterprise Club's Freedom Club PAC, et

al. v. Ken Bennett, 2011 U.S. LEXIS 4992 (June 27,

2011).6

William P. Danielczyk, Jr., et al. v. United States (cert.

denied), 2013 U.S. LEXIS 1810 (Feb. 25, 2013).7

SUMMARY OF ARGUMENT

 The aggregate limits on individual electoral

contributions under the Federal Elections Campaign

Act, as amended, reflect the distinction drawn in
3

Buckley v. Valeo between contributions and

expenditures. Expenditures were said to be protected

by the freedom of speech, thereby deserving greater

First amendment protection than electoral

contributions which were only protected by the

freedom of association. That distinction was wrong

then, and it is wrong now. As Chief Justice Warren

Burger pointed out in dissent in Buckley, the freedoms

of speech and association are “two sides of the First

Amendment coin,” enjoying equal constitutional

protection. Twenty-four years later, the Chief Justice’s

view was vindicated in Citizens United v. FEC

wherein this Court applied strict scrutiny to the FECA

ban on corporate speech, not on the ground of free

speech, but freedom of association. Thus, this Court

overruled Austin v. Michigan Chamber of Commerce

on the ground that Government may not ban “political

speech simply because the speaker is in an association

that has taken on the corporate form.” This right of

association is based on the right of the people to

peaceably assemble, a right long protected from

government discrimination. Limited to content- and

speaker-neutral time, place, and manner regulations,

the Government may take only actions aimed at

protecting the physical peace. Thus, the ban on

electoral contributions, like the ban on electoral

expenditures, unconstitutionally elevates government

officials above the people.

Instead of deferring to incumbent lawmakers who

set the rules which govern the financing of federal

election campaigns, this Court should not be taken in

by Congress’s claim that campaign finance regulations

are designed to “promote fair practices in the conduct
4

of the election campaigns for federal office.” To the

contrary, this Court should be wary of the claims of

incumbent officeholders whose self-interest is directly

at stake when making the rules governing the

financing of campaigns waged by challengers seeking

to replace them. Even though this Court has, from

Buckley to the present, recognized this conflict of

interests, it has failed to exercise its judicial role to say

what the law of the First Amendment is, as applied to

electoral communications.

Instead, this Court has allowed exceptions to fixed

speech, press, assembly and petition principles to be

overridden by balancing tests, permitting violations of

those principles if it is perceived that the Government

has strong enough interests. Citizens United scuttled

this balancing approach, imposing a categorical First

Amendment rule against all bans on speech and

association based upon the identity of the speaker or

the content of the communication, regardless of any

asserted overriding interest, compelling or otherwise.

ARGUMENT

I. THE AGGREGATE LIMITS ON INDIVIDUAL

ELECTORAL CONTRIBUTIONS ARE BASED

UPON THE UNCONSTITUTIONAL

DISTINCTION BETWEEN CONTRIBUTIONS

AND EXPENDITURES DRAWN IN BUCKLEY

v. VALEO.

Appellants urged the three-judge court below to

apply the same strict scrutiny used to review
5

regulation of electoral expenditures to the aggregate

limits on contributions to political candidates and

parties fixed by the Federal Election Campaign Act, as

amended, “because laws burdening political speech are

subject to [such] scrutiny and the aggregate limits

‘“similarly burden” First Amendment rights.’” See

McCutcheon v. FEC, 2012 U.S. Dist. LEXIS 139651 *1,

*9 (D.D.C. 2012). The court below refused, accepting

the distinction adopted in this Court’s decision in

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

The difference between contributions and

expenditures is the difference between giving

money to an entity and spending the money

directly on advocacy. Contribution limits are

subject to lower scrutiny because they

primarily implicate First Amendment rights of

association, not expression, and contributors

remain able to vindicate their associational

interests in other ways. [McCutcheon, 2012

U.S. Dist. LEXIS 139651 at *12].

According to Buckley, since limits on the contributions

of money “primarily implicate associational rights

rather than rights of expression,” they “impose only a

‘marginal’ restriction on a contributor’s ‘ability to

engage in free communication.’” See McCutcheon at

*12. In contrast, again according to Buckley,

independent expenditures are “money injected directly

into the nation’s political discourse” whereas

contributions are “money [that] goes into a pool from

which another entity draws to fund its advocacy.” Id.

By these distinctions, the Buckley Court
6

diminished the right of the people to associate together

to engage in political speech, as if it were less worthy

of First Amendment protection than the right of an

individual, acting alone, to engage in speech. The

Court thereby relegated associational speech to a

second-class status. The distinction is not supported

by the First Amendment text which, on its face,

applies equally to laws that abridge the freedoms of

the press and speech, and the rights of assembly and

petition. In disregard of the plain text, Buckley

established an artificial hierarchy of First Amendment

rights. It was wrong for this Court to have done so

then, and it is wrong now. Thankfully, this Court has

laid the foundation to correct Buckley’s error in

Citizens United v. FEC, 558 U.S. 310 (2010). This case

provides this Court with the opportunity to reverse

that wrong and restore the right of the people

peaceably to assemble — the source of the people’s

right of association — to the equal station to which

that right is entitled according to the original First

Amendment text.

A. Buckley Wrongly Distinguished Electoral

Contributions from Electoral

Expenditures, Granting Them Lesser

Constitutional Protection.

In his prescient dissent in Buckley, Chief Justice

Warren Burger rejected the Buckley majority’s

distinction between contributions and expenditures,

charging his colleagues with having ignored “the

reasons it finds so persuasive” to strike down limits on

expenditures, “when it approves similarly stringent

limitations on contributions.” Buckley, 424 U.S. at
7

241. Finding that “contributions and expenditures are

two sides of the same First Amendment coin,” the

Chief Justice noted that “limiting campaign

contributions ... restricts the amount of money that

will be spent on political activity – and it does so

directly,” as even the government argued, when it

contended that contribution “limits will ‘act as a brake

on the skyrocketing cost of political campaigns.’” Id. at

242. 

To further illustrate this point, Chief Justice

Burger chided his colleagues for assuming that the

contribution limit was so low that it would have only

a marginal effect on the “amount of political activity

and debate that the Government will permit to take

place.” Id. In response, the Chief Justice asserted

that the majority’s “logic ignores the disproportionate

influence large contributions may have when they are

made early in a campaign; ‘seed money’ can be

essential, and the inability to obtain it may effectively

end some candidacies before they begin.” Id. at 242

n.5. In a further critique of the majority’s facile

assumption that the contribution limit will fall equally

on all political discourse throughout the United States,

the Chief Justice noted that a single limit on

contributions in all federal campaigns is “clearly

arbitrary – Congress [having] imposed the same

ceiling on contributions to a New York or California

senatorial campaign that it has put on House races in

Alaska or Wyoming.” Id. at 242 n.6.

The Chief Justice also debunked the majority’s

assumption that, unlike limits on independent

expenditures, limits on contributions “‘involve[] speech
8

by someone other than the contributor.’” Id. at 243.

“The premise,” the Chief Justice declared, “is

demonstrably flawed.” Id. Dismissing the majority’s

distinction as a mere “word game,” he observed that

“candidates and contributors spend money on political

activity because they wish to communicate ideas, and

their constitutional interest in doing so is precisely the

same whether they or someone else utters the words.”

Id. at 244.

Next, the Chief Justice faulted the majority for

denigrating “freedom of association” in comparison

with “freedom of speech,” contending that he had “long

thought [the two freedoms] were two peas from the

same pod.” Id. By lowering the constitutional bar, to

limit contributions as merely an exercise of the lesser

“freedom of association,” the Chief Justice charged the

Buckley majority with affording less protection of

political speech than of obscenity and pornography

which enjoy the greater protection of “freedom of

speech.” Id. at 245.

Finally, the Chief Justice questioned whether the

limit on contributions, with all its exceptions, would

serve its purported goal of preventing corruption or the

appearance of corruption:

[T]he Act’s distinction between contributions

in money and contributions in services

remains, with only the former being subject to

any limits[:] “The classification created only

regulates certain types of disproportional

influences[,] services are excluded from

contributions. This allows the housewife to
9

volunteer time that might cost well over

$1,000 to hire on the open market, while

limiting her neighbor who works full-time to a

regulated contribution. It enhances the

disproportional influence of groups who

command large quantities of these volunteer

services and will continue to magnify this

inequity by not allowing for an inflation

adjustment to the contribution limit. [Id. at

253-54.]

Notwithstanding the Chief Justice’s critique, the

Buckley distinction between contributions, as an

associational right, and expenditures, as an individual

speech right, stood for nearly 35 years, until Citizens

United v. FEC. 

B. The Buckley Distinction Between

Contributions and Expenditures Conflicts

With Citizens United.

Although the Citizens United Court rehearsed the

Buckley Court’s rule approving contribution limits, it

refrained from reaffirming that rule. See Citizens

United, 558 U.S. at 356-57. As the Court observed,

“Citizens United has not made direct contributions to

candidates, and it has not suggested that the Court

should reconsider whether contribution limits should

be subjected to rigorous First Amendment scrutiny.”

Id. at 359. So the Court addressed only the question

regarding the constitutionality of the absolute ban on

corporations making independent expenditures in

support of, or in opposition to, a person’s candidacy for

election to federal office. In conducting its review, the
10

Court did not hesitate to apply “strict scrutiny,” and in

the process of that review, to address the question

before it not only as one implicating freedom of speech,

but also the freedom of association. 

Indeed, at the very outset of its discussion of the

constitutionality of the corporate ban under the First

Amendment, Citizens United forecast that the “ban on

corporate speech” would not be salvaged by the

argument that a “PAC created by a corporation can

still speak.” Id. at 337. Rather, the Court observed

not only that the “PAC is a separate association from

the corporation,” but also that PACs were

“burdensome alternatives ... expensive to administer

and subject to extensive regulations.” Id. And, the

Court declared, “[g]iven the onerous restrictions, a

corporation may not be able to establish a PAC in time

to make its views known regarding candidates and

issues in a current campaign.” Id. at 339. The Court

found that this associational burden, in turn,

“necessarily” burdens the quantity and quality of

political speech because “‘effective public

communication requires the speaker to make use of

the services of others.’” Id. Thus, the Court concluded

that the ban on corporate speech was “‘subject to strict

scrutiny.’” Id. at 340.

The Court identified the threshold issue as

whether First Amendment protected speech could be

conditioned upon the identity of the speaker as a

corporate body. See id. at 341-344. Citing a lengthy

string of cases extending speech protection to

corporations, the Court concluded that it consistently

had “rejected the argument that political speech of
11

8

 435 U.S. 765 (1978).

9

 494 U.S. 652 (1990).

corporations or other associations should be treated

differently under the First Amendment simply because

such associations are not ‘natural persons.’” Id. at 343.

At stake, then, was whether the First Amendment

protected the right of persons to associate in whatever

lawful way the people in their sovereign judgment

chose. See id. at 344. Relying heavily on First

National Bank of Boston v. Bellotti,

8

 decided two years

after Buckley, the Court concluded “that the

Government lacks the power to ban corporations from

speaking.” Id. at 347.

Only Austin v. Michigan Chamber of Commerce9

stood in the way of this settled principle. But the

Citizens United Court swept Austin away, not as a

violation of the freedom of speech, but as a violation of

the freedom of association:

If the First Amendment has any force, it

prohibits Congress from fining or jailing

citizens, or associations of citizens, for simply

engaging in political speech. If the

antidistortion rationale were to be accepted ...

it would permit Government to ban political

speech simply because the speaker is an

association that has taken on the corporate

form. [Id. at 349.]

Enlisting even Buckley itself, Citizens United

concluded that “the concept that government may
12

restrict the speech of some elements of our society in

order to enhance the relative voice of others is wholly

foreign to the First Amendment.” Id. at 350. Thus,

not surprisingly, Citizens United found in the media

exemption a perfect illustration of “differential

treatment [that] cannot be squared with the First

Amendment,” a discrimination that would:

[A]llow a conglomerate that owns both a media

business and an unrelated business to influence or

control the media in order to advance its overall

business interest. At the same time, some other

corporation, with an identical business interest but

no media outlet in its ownership structure, would

be forbidden to speak or inform the public about

the same issue. [Id. at 352-53.]

In conclusion, Citizens United hearkened back to

the founding era when the First Amendment

principles mandated “no limits on the sources of

speech and knowledge [—] ‘[a]ny number of people

could join in such proliferating polemics, and rebuttals

could come from all sides.’” Id. at 353. Thus, the First

Amendment, as originally understood and written,

secured not only the freedoms of press and speech, but

also the rights of the people to assemble and to petition

the government for redress of grievances” — not as

weak-add-ons, but as equal partners in the First

Amendment’s protection of an open marketplace of

ideas.
13

10 92 U.S. 542, 552 (1875).

C. The Aggregate Limit on Contributions to

Political Campaigns and Parties Violates

the Right of the People to Assemble and to

Petition the Government for Redress of

Grievances.

Seventy-six years ago this Court affirmed that

“[t]he right of peaceable assembly is a right cognate

to those of free speech and free press and is equally

fundamental.” DeJonge v. Oregon, 299 U.S. 353, 364

(1937) (emphasis added). Quoting from United States

v. Cruikshank10 decided sixty-two years before, the

DeJonge Court affirmed that “‘[t]he very idea of a

government, republican in form, implies a right on the

part of its citizens to meet peaceably for consultation

in respect to public affairs and to petition for redress

of grievances.’” Id. Indeed, this Court found that the

best safeguard against “incitements to the overthrow

of our institutions by force or violence” was to:

[P]reserve inviolate the constitutional rights of

free speech, free press, and free assembly in

order to maintain the opportunity for free

political discussion, to the end that the

government may be responsive to the will of

the people and that changes, if desired, may be

obtained by peaceful means. Therein lies the

security of the Republic, the very foundation of

constitutional government. [Id. at 365.]

Having acknowledged this foundation, the DeJonge
14

Court held that “peaceable assembly for lawful

discussion cannot be made a crime.” Id. Further, the

Court ruled that “[t]hose who assist in the conduct of

such meetings cannot be branded as criminals on that

score.” Id. (emphasis added). Finally, the Court

concluded that:

The question, if the rights of free speech and

peaceable assembly are to be preserved, is not

as to the auspices under which the meeting

is held but as to its purpose; not as to the

relations of the speakers, but whether their

utterances transcend the bounds of

freedom of speech which the Constitution

protects. [Id. (emphasis added).]

The aggregate limits imposed on contributions to

political candidates and parties directly violate these

principles. As the Buckley Court conceded, the

original $25,000 aggregate ceiling “does impose an

ultimate restriction upon the number of candidates

and committees with which an individual may

associate himself by means of financial support.”

Buckley, 424 U.S. at 38. Knowingly and willfully

exceeding the aggregate amounts prescribed by statute

was then, and still is, severely punished as a felony by

fine and imprisonment. See 2 U.S.C. § 437g(d). In

justification of this felony prohibition, the Buckley

Court ruled that the contribution limits did not shut

the door to other ways, for individuals to associate

themselves in support of a campaign, including

“independent political expression” and “volunteering

their services.” Id., 424 U.S. at 28. Additionally,

Buckley noted that individuals could contribute money
15

to PACs. Id. at 28 n.31. 

By providing such alternative ways of associating

in the overall political debate surrounding a federal

election campaign, the Buckley Court assumed that

the Government had afforded the people numerous

meaningful avenues of participation. In support of

this assumption, Buckley relied heavily on CSC v.

Letter Carriers, 413 U.S. 548 (1973), which upheld a

statute that limited the right of federal employees to

associate in partisan political campaigns in order to

better ensure “‘fair and effective government.’” See

Buckley, 424 U.S. at 27 and n.29. As then-Associate

Justice William Rehnquist pointed out in his

concurring and dissenting opinion in Buckley:

The statute before us was enacted by

Congress, not with the aim of managing the

Government’s property nor of regulating the

conditions of Government employment, but

rather with a view of regulation of the

citizenry as a whole. [Buckley, 424 U.S. at 291

(Rehnquist, J., concurring and dissenting).]

Thus, as Citizens United has pointed out, Letter

Carriers, and other similar precedents, “are inapposite

... stand[ing] only for the proposition that there are

certain governmental functions that cannot operate

without some restrictions on particular kinds of

speech.” Citizens United, 558 U.S. at 341. Decoupled

from the voluntarily assumed duties of government

employment, it is the sovereign right of the people to

determine whether to associate, and with whom, so

long as their association is peaceable and for a lawful
16

purpose. See DeJonge, 299 U.S. at 465-66. It is not for

the Government to decide whether the limits that it

has placed on certain associational rights in connection

with federal elections may be constitutionally offset by

other available associational opportunities to influence

the outcome of a federal election. See Citizens United,

558 U.S. at 340-41, 344.

Nor is it within the powers of the Government to

curtail citizen assemblies and associations because

they allegedly “corrupt” the political process, much less

create the “appearance” of such corruption. The

constitutional right of the sovereign people to assemble

is subject only to the condition that the assembly be

“peaceabl[e].” Campaign finance reform laws are not

subject-matter neutral “time, place and manner

restriction[s] on speech,” like the law upheld in

Thomas v. Chicago Park District, 534 U.S. 316 (2002).

Rather, campaign finance regulations singled out

certain kinds of political speech — campaign or

campaign-related — and, until Citizens United,

required people who were associated with each other

in a corporate entity to form a separate PAC in order

to engage in certain electoral communications. Such

an extra burden had, as its “purpose and effect[,] to

silence entities whose voices the Government deem[ed]

to be suspect.” Id. at 340. Further, by providing

exemptions, such as the one favoring media

corporations, the Government impermissibly chose to

enhance the electoral voices with which Congress

wished to curry favor. See id. at 354-56. 

Under the guise of a professed concern about

corruption and the appearance of corruption of money
17

11 The phrase is taken from Edwards v. South Carolina, 372 U.S.

229, 235 (1963).

in politics, Congress seeks to preserve political peace,

creating a system of campaign finance that strips the

people of their sovereign power to associate voluntarily

with one another in one of its “most pristine and

classic form[s].”11 Since the founding of the American

constitutional republic, the people have had the right

to join together in support of candidates for office

without first having to register to obtain permission

from the Government, and to report back. But, as the

system of campaign finance regulation has been so

chillingly and accurately described:

Campaign finance regulations now impose

“unique and complex rules” on “71 distinct

entities.” ... These entities are subject to

separate rules for 33 different types of political

speech. The FEC has adopted 568 pages of

regulations, 1,278 pages of explanations and

justifications for those regulations, and 1,771

advisory opinions since 1975. [Citizens United

at 334.]

No longer a right of the people, running for political

office in America is allowed by government

“condescension.” See St. George Tucker, Views of the

Constitution of the United States, p. 238 (Liberty

Fund: 1999). Such a system of electoral speech has no

place in a republican form of government where the

people are sovereign, and the government officials are

their servants.
18

II. THIS COURT SHOULD NOT DEFER TO

INCUMBENT LAWMAKERS IN SETTING

THE RULES GOVERNING THE

FINANCING OF CAMPAIGNS WAGED TO

UNSEAT THEM.

A. The District Court Erroneously Accepted

the Premise that the Congressional

Purpose Stated in the Federal Election

Campaign Act is Benign and Accurate.

The district court below based its opinion on the

assumption that: 

Congress enacted the Federal Elections

Campaign Act of 1971 (FECA) to “promote

fair practices in the conduct of the election

campaigns for Federal political offices,” Pub. L.

No. 92-225, preamble, 86 Stat. 3,3 (1972).

[McCutcheon v. FEC, 2012 U.S. Dist. LEXIS

139651 (Sept. 28, 2012) (emphasis added).] 

Throughout its opinion, the court deferred to the oftrepeated claim that campaign finance laws are

designed to “prevent[] corruption or the appearance of

corruption.” Id. at 13. At no point did the district

court ever examine Congress’ motives, and the

truthfulness of the Act’s claimed purpose. When the

plaintiffs argued that the current aggregate

contribution limits were unconstitutionally low and

overbroad, the Court simply deferred, stating “[i]t is

not the judicial role to parse legislative judgment

about what limits to impose” (id. at 19), citing Randall

v. Sorrell, 548 U.S. 230, 248 (2006). 
19

12 “The Top 10 Things Every Voter Should Know About

Money-in-Politics,” Open Secrets.org,

http://www.opensecrets.org/resources/dollarocracy/04.php

However, campaign finance laws are not like other

laws. Campaign finance laws allow incumbents to

write the rules by which they are challenged for reelection. Yet the court below acknowledged no judicial

responsibility to scrutinize the effect of campaign

finance legislation, its only reference to how the law

might affect differently the campaigns of incumbents

and challengers being:

The effect of the aggregate limits on a

challenger’s ability to wage an effective

campaign is limited because the aggregate

limits do not apply to nonindividuals.... [Id. at

22 (citations omitted).]

A corollary of this statement by the district court

is that, while the challenged aggregate limits on

individuals adversely affect challengers, such limits do

not entirely preclude their ability to wage an effective

campaign. As in pinball, the fact that the table could

have been tilted even more aggressively is no

justification for ignoring the tilt that has occurred.

Moreover, in the 2010 Congressional elections,

individuals (who are subject to the aggregate statutory

limitations being challenged) still “account[ed] for

about two-thirds of the money going to Senate

candidates and about half the money going to House

candidates.”12 A restriction on aggregate individual

contributions, therefore, is no small matter. Under

those limits, the most that one individual may give to
20

13 The Republican and Democratic Parties have been beneficiaries

of the aggregate contribution limit, as federal law permits much

more, $70,800, to be given to party committees than to candidate

committees. Large contributions to other political parties (e.g.,

Constitution Party, Libertarian Party, Green Party) are relatively

rare. 

14 For a more complete list of incumbent advantages, see Amicus

Brief of Gun Owners of America, Lincoln Institute for Research

and Education, National Citizens Legal Network (Citizens

United), U.S. Border Control, and Policy Analysis Center, pp. 17-

21 (June 7, 1999) in Nixon v. Shrink Missouri Government PAC,

528 U.S. 377 (2000), http://www.lawandfreedom.com/site/election/

shrinkpac.html.

all House and Senate races in one election cycle is

$46,200.13 Based on a $2,600 per election contribution

limit, this aggregate amount would be exhausted with

maximum donations to fewer than 18 campaigns,

precluding contributions to any others. 

However, it is a political axiom that money is more

important to challengers than it is to incumbents.

Compared to challengers, incumbents have the

advantage of established name identification, prior

experience in running for Congress, experience in

complying with intentionally complex and often vague

federal campaign finance laws, government paid staff

in Washington, D.C. and their district, newsletter

funds, and accessibility to the media, to name just a

few.14 Although challengers rarely can raise as much

money as incumbents, they do not need to raise more

money than incumbents to win. Challengers only need

to raise enough money to convince the press, their

volunteers, and the public that they are running a

campaign that could win. Incumbents seek to keep
21

15 http://www.cfinst.org/Press/PReleases/12-11-09/Early_PostElection_Look_at_Money_in_the_House_and_Senate_Elections_

of_2012.aspx.

16 See, e.g., J. Campbell & S. Jurek, The Decline of Competition

and Change in Congressional Elections (2003). (Based on a study

of House elections from 1920 to 2000, “fewer than one-fifth of

House seats in a typical year could be characterized as marginal.”)

http://www.acsu.buffalo.edu/~jcampbel/documents/Congress02.

pdf.

challengers’ fund raising below the level required to be

considered credible. The Campaign Finance Institute

reported that:

winning challengers ($2.0 million) did not

raise as much as the incumbents they defeated

($2.6 million). As has been true almost every

election since disclosure, challengers did not

need to raise or spend as much as

incumbents to win, as long as they had

enough to be heard. [Campaign Finance

Institute, Early Post-Election Look at Money

in the House and Senate Elections of 2012

(Nov. 9, 2012) (emphasis added).]15

A hypothetical explains the significant effect of

this incumbent tilt. Assume there were 70 House

races which were seriously contested in a given

election cycle.16 Further assume just 200 persons

believed the Congress was leading the country in the

wrong direction and wanted to contribute the

maximum amount of $2,600 to challengers in each of

these races — a total of $182,000 per contributor —

certainly not an extraordinary amount of money to
22

17 The constitutionality of the $2,600 cap on individual

contributions has not been questioned in this case, but it is part

of the multifaceted plan by incumbents to make it more difficult

for challengers. In the context of Presidential politics, Eugene

McCarthy became a lifelong critic of the Federal Election

Campaign Act of 1971, explaining how its provisions criminalized

the very fund raising which made possible his successful challenge

to President Lyndon Johnson just three years before. See

generally G. Will, “The Poet Who Took on LBJ,” Washington Post

(Dec. 13, 2005). (“McCarthy's audacious challenge to an

incumbent president was utterly dependent on large early

contributions from five rich liberals. Stewart Mott's $210,000

would be more than $1.2 million in today's dollars.”) 

18 Another aspect of federal election law makes this scenario less

likely: many donors fear the retribution that could come to them

or their businesses through the compelled disclosure of their

support for challengers. Of course, that is why incumbents, often

with governmental power to reward or punish, deride anonymous

speech, wanting disclosure of the names, addresses, and

occupations of those who would have the temerity to support their

challengers. See generally, Citizens United, 130 S. Ct. at 980-82

(Thomas, J., dissenting).

many. The contributions received by each campaign

from just this group of donors would be $520,000 —

about 25 percent of the average amount of money

spent in a successful challenge to a House incumbent

in 2012. For many of these races, an extra 25 percent

infusion of funds could be the difference in the race,

particularly since money means so much more to

challengers than incumbents.17 The change in the

outcome of a half-dozen, dozen, or more races could

have a dramatic affect on the direction of the country.

But under current law, these donors are limited to

making maximum contributions to fewer than a

quarter of these genuinely contested races.18
23

It is beyond question that aggregate individual

contribution limits benefit incumbents over

challengers. That is, after all, why incumbents

enacted those limits.

B. Courts Have An Obligation to Do More

than Just Recognize the Risk of Campaign

Finance Laws Being Written to Favor

Incumbents. 

Even in Buckley v. Valeo, 424 U.S. 1 (1976), this

Court demonstrated some sensitivity to the problems

created by rules written by incumbents:

Since an incumbent is subject to these

limitations to the same degree as his

opponent, the Act, on its face, appears to be

evenhanded. The appearance of fairness,

however, may not reflect political reality.

Although some incumbents are defeated in

every congressional election, it is axiomatic

that an incumbent usually begins the race

with significant advantages. In addition to the

factors of voter recognition and the status

accruing to holding federal office, the

incumbent has access to substantial resources

provided by the Government.... Where the

incumbent has the support of major specialinterest groups ... and is further supported by

the media, the overall effect of the ...

limitations enacted by Congress could

foreclose any fair opportunity for a

successful challenge. [Id. at 31 n.33

(emphasis added).] 
24

The Buckley Court apparently believed it

acceptable that “the limitations may have a significant

effect on particular challengers or incumbents”

because the record did not demonstrate that the

constraints met the remarkably high and arbitrary

threshold that they “will invariably and invidiously

benefit incumbents as a class.” Id. at 33 (emphasis

added). Yet, because the Court struck certain of the

FECA restrictions, it concluded that “we need not

express any opinion with regard to the alleged

invidious discrimination resulting from the full sweep

of the legislation as enacted.” Id. 

Even in Nixon v. Shrink Missouri Government

PAC, 528 U.S. 377 (2000), where this Court

deliberately chose to defer to Congressional

“expertise,” it recognized that its deference was

somewhat circumscribed:

Where a legislature has significantly greater

institutional expertise, as, for example, in the

field of election regulation, the Court in

practice defers to empirical legislative

judgments — at least where that deference

does not risk such constitutional evils as,

say, permitting incumbents to insulate

themselves from effective electoral

challenge. [Id. at 402 (emphasis added).] 

And even more recently, in McConnell v. FEC, 540

U.S. 93 (2003), at least three justices in dissent

concluded that Title I of the Bipartisan Campaign

Reform Act:
25

19 Former Federal Trade Commission Chairman James Miller

had appeared as an expert witness in the McConnell case on

behalf of the challenge to BCRA filed by Congressman Ron Paul,

Gun Owners of America, Inc., Gun Owners of America Political

Victory Fund, RealCampaignReform.org (now DownsizeDC.org),

Citizens United, Citizens United Political Victory Fund, Michael

Cloud, and Carla Howell. http://www.lawandfreedom.com/site/

election/Witness/Miller.pdf. 

begins to look very much like an incumbency

protection plan. See J. Miller,19 Monopoly

Politics 84-101 (1999) (concluding that

regulations limiting election fundraising and

spending constrain challengers more than

incumbents. [Id. at 306 (Kennedy, J.,

dissenting).]

The Kennedy dissent concluded that the “more lenient

treatment accorded to incumbency-driven politicians

than to party officials who represent broad national

constituencies must render all the more suspect

Congress’ claim that the Act’s sole purpose is to stop

corruption.” Id. at 307. There was good reason for

members of this court to question the motives of

Congress, as during debate on BCRA, “Senator

Feingold advised his colleagues that they were

required to cite corruption, regardless of whether

it existed, to satisfy the demands of the Buckley

Court.” R. Bauer, “Campaign Finance After McCainFeingold,” 153 U.PENN. L.R. 5, 29 (2004) (emphasis

added). 

What the Buckley Court felt that it “need not” do

in 1974 has not been done in any intervening case, and

certainly was not done by the district court below.
26

20 http://www.thirty-thousand.org/documents/QHA-08.pdf.

However, this case presents this Court with an

opportunity to take action upon the problem it has

recognized for nearly 40 years — the “political reality”

of campaign finance laws — without deference to the

self-interested incumbents who wrote those laws.

C. Rather than Defer to the Political

Branches, the Federal Judiciary has a

Duty to Protect the Prerogatives of The

People to Remove Incumbent Office

Holders. 

In Buckley, the Court found “[t]here is no such

evidence to support the claim that the contribution

limitations in themselves discriminate against major

party challengers to incumbents.” Buckley, at 32.

Much such evidence now exists. An economic analysis

of the anti-competitive effect of federal campaign

finance law was presented in the McConnell litigation

through the testimony of Dr. James Miller. (See note

19, supra.) And, since then, more studies attest to the

success of such laws achieving their intended

purposes. For example, a detailed study of “Reelection

Rates of Incumbents in the U.S. House, First through

108th Congress,”20 was published in 2006. This study

concluded that the trend in reelection rates from the

64th Congress (1915-1917) through the 108th Congress

(2003-2005) “indicates a gradual increase in reelection

rates ... consistent with the view that the inherent

advantages held by incumbents seeking reelection (visa-vis any challengers) may have increased over time.”
27

21 http://quotes.dictionary.com/those_who_have_been_once_

intoxicated_with_power

Id. at § 2.4.1. 

The desire of those in office to retain their position

is not new. As Edmund Burke explained: “Those who

have been once intoxicated with power, and have

derived any kind of emolument from it, even though

but for one year, never can willingly abandon it.”21

There is no reason to believe that much has changed

with our modern Congress. In his law review article

on judicial deference, subtitled “When ‘the POLS make

the calls,’” former White House Counsel for President

Obama, Robert F. Bauer, explained that “expressions

of incumbents’ attention to their own welfare surfaced”

on multiple occasions during the consideration of

BCRA. He specifically cited the fact that “both the

Democratic Leader and the ranking Democratic

Member of the Rules Committee noted during floor

debate that the plain effect of the [BCRA Millionaire’s

Amendment] was ‘incumbent protection.’” R. Bauer,

“Campaign Finance,” pp. 27-28. It is with good reason

that the Congress is called one of the “political”

branches, and no reason to believe that incumbents

would write such laws without regard to their political

effect. There is no reason for the Court to trust a

political branch not to be political. 

The rationale for the judiciary to defer to the

political branches is rooted in the fact the Congress

and Presidency serve during terms of years, and,

unlike the federal judiciary, can be voted out by the

people. Yet any law which artificially enhances the
28

power of the incumbent political class diminishes a

challenger’s chance of success and thereby constitutes

an encroachment on the sovereignty of the people to

elect leaders of their own choosing.

The judiciary serves during periods of “good

Behavior” (Art. III, Sec. 1) due to a constitutional

provision which Alexander Hamilton described as an:

excellent barrier to the encroachments and

oppressions of the representative body.... [I]t

is the best expedient which can be devised in

any government to secure a steady, upright,

and impartial administration of the laws. [A.

Hamilton, Federalist No. 78, G. Carey & J.

McClellan, The Federalist, Kendall Hunt

(1990) 401. ]

It was to correct injustices such as incumbent

protection laws that the “good Behavior” clause was

written into the Constitution. First Amendment rights

are not matters that were entrusted to judges to be

compromised away through the use of artificial

balancing tests which may give the appearance of

constitutional analysis, but instead have served as

legal cover for reaching the result judges prefer. 
29

III. THE AGGREGATE CONTRIBUTION

LIMITS CONFLICT WITH THE

CATEGORICAL PRINCIPLE APPLIED IN

CITIZENS UNITED.

A. The Lower Court Erroneously Relied on

Supreme Court Decisions Preceding

Citizens United.

The court below upheld the challenged electoral

contribution limits based on this Court’s decisions

which preceded Citizens United v. FEC, 558 U.S. 310

(2010). See McCutcheon v. FEC, 2012 U.S. Dist.

LEXIS 139651, *9-13 (D.D.C. 2012) (citing Buckley v.

Valeo, 424 U.S. 1 (1976); Cal. Med. Ass’n v. FEC, 453

U.S. 182 (1981); and McConnell v. FEC, 540 U.S. 93

(2003)). Thus, it applied the lower level of scrutiny

established in Buckley that “contribution limits will be

valid as long as they satisfy ‘the lesser demand of

being closely drawn to match a sufficiently important

interest.’” Id. at *9.

Although urged to apply strict scrutiny based on

the proffered theory that Citizens United had erased

the distinction between electoral expenditures and

contributions, the court below demurred, refusing to

require proof of a compelling state interest. While it

“acknowledge[d] the constitutional line between

political speech and political contributions grows

increasingly difficult to discern,” the district court

“declined Plaintiffs’ invitation to anticipate the

Supreme Court’s agenda.” Id. at *10. 

As demonstrated in Section I, supra, appellants
30

are correct that Citizens United has destroyed the

constitutional dichotomy between electoral

expenditures and contributions, undermining the basis

for applying different levels of scrutiny. But Citizens

United has done more than that. It has discarded

interest-balancing tests altogether, substituting

therefor fixed categorical principles derived from the

original First Amendment text and history. 

B. Citizens United Embraced a Categorical

Approach to First Amendment Rights for

Different Speakers, Rejecting Judicial

Interest Balancing.

Prior to Citizens United, campaign finance

regulation, including the Constitutional right of

corporations to engage in political speech, was subject

to balancing tests, whereby the Government was

required to demonstrate a sufficiently strong interest

to override a person’s right to full participation in the

free marketplace of ideas, as secured by the First

Amendment. See generally Citizens United v. FEC,

558 U.S. 340-62 (2010). Even when applying the most

stringent “strict scrutiny” test, requiring a “compelling

state interest” which was “narrowly tailored” and

using the “least restrictive means,” this Court

permitted governmental restrictions on political

speech, notwithstanding the First Amendment’s

general categorical ban on discriminatory laws based

on the identity of the speaker. See id., 558 U.S. at 340-

41. 

In Citizens United, this Court took the initiative to

revisit the exception for electoral communications to
31

22 At the request of the Court in Citizens United, the issue of

overruling Austin and portions of McConnell v. FEC, 540 U.S. 93

(2003), was set for reargument (174 L.Ed.2d 599 (2009)), and then

reargued on September 9, 2009.

the general rule, addressing the question of whether

Austin v. Michigan Chamber of Commerce, 494 U.S.

652 (1990), should be overruled, because “Austin had

held that political speech may be banned based on the

speaker’s corporate identity.” See Citizens United, 558

U.S. at 319.22 Austin relied on the “strict scrutiny” test

and found that the State of Michigan had “a

compelling governmental interest in preventing ‘the

corrosive and distorting effects of immense

aggregations of wealth that are accumulated with the

help of the corporate form and that have little or no

correlation to the public’s support for the corporation’s

political ideas.’” See Citizens United, 558 U.S. at 348.

Although the Citizens United Court stated that

“[l]aws that political speech are ‘subject to strict

scrutiny...’” (id. at 340), it did not overrule Austin on

the ground that it failed to apply correctly the strict

scrutiny test. Rather, the Court abandoned the use of

the “strict scrutiny” test, refusing to apply any

balancing test, strict, exact, or otherwise. Instead, it

stated: “The Government may commit a constitutional

wrong when by law it identifies certain preferred

speakers,” and asserted that “Austin interferes with

the ‘open marketplace’ of ideas protected by the First

Amendment.” Id. 558 U.S. at 340, 354. In essence, the

Citizens United Court reasoned that:

[t]he First Amendment does not permit
32

Congress to make ... categorical distinctions

based on the corporate identity of the speaker

and the content of the political speech. [Id.,

558 U.S. at 364.]

By overruling Austin, the Court “return[ed] to the

principle”:

that the Government may not suppress

political speech on the basis of the speaker’s

corporate identity. No sufficient governmental

interest justifies limits on the political speech

of nonprofit or for-profit corporations. [Id.]

Under Citizens United, no court can justify any law

that discriminates on the basis of the speaker’s

identity, no matter how strong the government’s

countervailing interest. 

This Court made this understanding of the

Citizens United holding crystal clear in American

Tradition Partnership, Inc. v. Bullock, 567 U.S. ___,

132 S. Ct. 2490 (2012). In that case, the Montana

State Supreme Court had attempted to cabin Citizens

United as a narrow factual ruling where Congress had

failed to demonstrate a compelling interest to impose

a nationwide ban on corporate electioneering

communications with respect to federal election

campaigns. The state court found that Montana’s ban

on corporate speech rested upon a very different

factual base — Montana’s special historic experience

of corporate corruption of state elections of government

officials. See Western Tradition Partnership, Inc. v.

Attorney General, 363 Mont. 220, 271 P.3d 1, 11-48
33

(2011). The Montana court explained:

Citizens United was decided under its facts or

lack of facts.... Therefore, the factual record

before a court is critical in determining the

validity of a governmental provision

restricting speech.... The Supreme Court

held [in Citizens United] that laws that

burden political speech are subject to strict

scrutiny, which requires government to prove

that the law furthers a compelling state

interest and is narrowly tailored to that

interest. The Court ... clearly endorsed an

analysis of restrictions on speech, placing the

burden upon the government to establish a

compelling interest.... Here the government

met that burden. [Id., 271 P.3d at 15

(emphasis added).]

In its opinion announcing summary reversal, this

Court relied first upon the Constitution’s Article VI

supremacy clause, thereby verifying that the Citizens

United “holding” rested upon a fixed rule of law, not

upon a flexible standard of review dependent upon

variances of fact. See American Tradition, 132 S. Ct.

2490 at 2491. Second, the Court explained that

“Montana’s arguments in support of the judgment

below either were already rejected in Citizens United,

or fail to meaningfully distinguish that case.” Id. In

a last-ditch effort to preserve the power of the courts to

balance government interests against First

Amendment rights, Justice Breyer dissented,

protesting that:
34

this Court’s legal conclusion [in Citizens

United] should not bar the Montana Supreme

Court’s finding, made on the record before it,

that independent expenditures by corporations

did in fact lead to corruption or the appearance

of corruption in Montana. Given the history

and political landscape in Montana, that court

concluded that the State had a compelling

interest in limiting independent expenditures

by corporations. [Id. (emphasis added).] 

By refusing even to entertain arguments based

upon the Montana ruling, this Court sent an

unequivocal message that Citizens United had not

been decided on the ground that there was insufficient

factual evidence of a compelling governmental interest.

Rather, the Court ruled that, because corporate

expenditures do not, per se, constitute “quid pro quo

corruption,” such speech could not be found to be

outside the protection of the First Amendment. See

Citizens United, 558 U.S. at 357-61. Indeed, this

Court found that “[a]n outright ban on corporate

political speech during the critical preelection period is

not a permissible remedy,” Congress having “created

categorical bans on speech that are asymmetrical to

preventing quid pro quo corruption.” Id. at 361.

To be sure, although Citizens United mentioned

the distinction between expenditures and

contributions, it did not directly decide (much less

affirm) that distinction. Indeed, as this Court noted,

“Citizens United ... has not suggested that the Court

should reconsider whether contribution limits should
35

23 Although this Court mentioned the distinction in a postCitizens United decision, Arizona Free Enterprise Club’s Freedom

Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011), that mention

was merely dicta.

be subjected to rigorous First Amendment Scrutiny.”23

Citizens United, 558 U.S. at 359. Thus, this case

presents this Court with the first opportunity to apply

a categorical approach to contribution limits.

The Citizens United holding undermined Buckley’s

distinction between campaign contributions and

expenditures. Not only is the distinction a form of

speaker discrimination, it is also a form of content

discrimination. Citizens United did not apply judicial

balancing tests to these forms of discrimination, but

rather struck them down categorically as a breach of

the First Amendment guarantees. “The First

Amendment does not permit Congress to make these

categorical distinctions based on the corporate identity

of the speaker and the content of the political speech.”

Citizens United, 558 U.S. at 364.

C. The Court Should Return to the Text of

the First Amendment to Determine the

Constitutionality of the Aggregate

Contribution Limits.

This Court should take the opportunity presented

by this case to reconsider entirely its use of and

reliance on interest balancing, and whether it is indeed

a proper function of the judiciary. The balancing of

interests is a determination of whether a particular

governmental action (or inaction) is the most
36

appropriate as among other potential courses of action.

This type of determination is primarily a function of

the legislature. “If a certain means to carry into effect

any of the powers, expressly given by the constitution

to the government of the Union, be an appropriate

measure, not prohibited by the constitution, the degree

of its necessity is a question of legislative discretion,

not of judicial cognizance.” McCulloch v. Maryland, 17

U.S. 316 (1819).

Returning to a constitution’s basic rule, former

Oregon Supreme Court Justice Hans Linde explained

(prior to Citizens United):

The Constitution directs governments how

to act and how not to act. The Constitution

does not say that a government may act

contrary to those directives if judges believe

that the government has good enough reasons

to do so. Yet that is the current doctrine in the

United States Supreme Court. What is good

enough reason has become the subject of an

elaborate structure of formulas. [H. Linde,

“Who Must Know What, When, and How: The

Systemic Incoherence of ‘Interest’ Scrutiny,”

printed in Public Values in Constitutional

Law, p. 219 (S. Gottlieb, ed.) (Univ. of Mich.

Press 1993).]

Justice Linde explained how judicial “formulas” work

in the context of campaign finance regulation:

A 1990 decision, Austin v. Michigan Chamber

of Commerce, serves as one of many examples
37

24 Justice Linde’s statement is supported by the outcome in the

case that marked the beginning of judicial interest balancing. In

the ignominious Korematsu decision, this Court held that an order

of the current formula. The chamber

challenged a Michigan law against using

corporate funds in political campaigns under

the First Amendment and under the equal

protection clause. The Court stated the First

Amendment question to be whether the

restrictions “burden the exercise of political

speech and, if they do, whether they are

narrowly tailored to serve a compelling state

interest.” Coming to the chamber’s claim of

unequal treatment, the Court recited in

identical terms that, for fundamental rights

like political speech, statutory classifications

“must be narrowly tailored to serve a

compelling state interest.” [Id., p. 220.]

However, the balancing tests, or judicial

“formulas,” are useful for just one thing — masking

the agenda of an activist court to inject its own policy

preferences into what should be a categorical

constitutional issue: 

Any formula that scrutinizes laws as a

means toward ends presupposes an

instrumentalist or utilitarian test for valid

laws.... Many of [the Court’s] decisions do not

turn on calculations of social utility.... They

turn instead on undisguised value judgments

between a constitutional claim and an

opposing governmental policy. [Id., p. 232.24]
38

excluding over 100,000 Japanese-Americans from certain areas of

the country was constitutional, passing “the most rigid scrutiny.”

Korematsu v. United States, 323 U.S. 214 (1944). This decision

is now considered a blemish on the American legal system,

frequently listed with such decisions as Dred Scott and Plessy v.

Ferguson. See, e.g., G. Will, “Korematsu and the dangers of

waiving constitutional rights,” Washington Post (Apr. 24, 2013).

Even the U.S. Department of Justice has now confessed error with

respect to the facts that were presented by it to this Court for

“balancing.” See Confession of Error: The Solicitor General’s

Mistakes During the Japanese-American Internment Cases, Neal

Katyal (Mar. 20, 2011),

http://blogs.justice.gov/main/archives/1346.

Instead of repeating errors of the past, this Court

should eschew interest balancing as it did in Heller to

determine that the gun control laws in the District of

Columbia violated the Second Amendment guarantee.

See Heller v. District of Columbia, 554 U.S. 570 (2008).

During oral argument, Chief Justice Roberts led the

way with the observation:

[T]hese various phrases under the different

standards that are proposed, “compelling

interest,” “significant interest,” “narrowly

tailored,” none of them appear in the

Constitution.... Isn’t it enough to determine

the scope of the existing right that the

amendment refers to ... and determine ... how

this restriction and the scope of this right

looks in relation to [it].... I’m not sure why we

have to articulate some very intricate

standard. I mean, these standards that apply

in the First Amendment just kind of developed

over the years as sort of baggage that the First
39

Amendment picked up. [Transcript of Oral

Argument, p. 44, Dist. of Columbia v. Heller,

554 U.S. 570 (2008).]

Justice Breyer’s dissent insisted on a “judgeempowering ‘interest-balancing inquiry’” for future

Second Amendment cases, but the Court rejected it:

The very enumeration of the right takes out of

the hands of the government — even the Third

Branch of Government — the power to decide

on a case-by-case basis whether the right is

really worth insisting upon. A constitutional

guarantee subject to future judges’

assessments of its usefulness is no

constitutional guarantee at all. Constitutional

rights are enshrined with the scope they were

understood to have when the people adopted

them, whether or not future legislatures or

(yes) even future judges think that scope too

broad. [Heller, 554 U.S. at 634-35 (bold

added).]

As explained herein, the Court should re-analyze

the contribution limits based on the text of the First

Amendment, without reference to judicially created

interest-balancing tests. Instead of engaging in

interest balancing, this Court should cast off the

“baggage” that has collected around the First

Amendment. If it does that, it can reach no conclusion

other than that the federal election contribution limits

at issue herein are unconstitutional, as demonstrated

in section I.C., supra.
40

CONCLUSION

For the foregoing reasons, the decision of the

district court should be reversed.

Respectfully submitted,

MICHAEL CONNELLY WILLIAM J. OLSON*

U.S. JUSTICE HERBERT W. TITUS

FOUNDATION JEREMIAH L. MORGAN

932 D Street, Ste. 2 JOHN S. MILES

Ramona, CA 92065 ROBERT J. OLSON

(760) 788-6624 WILLIAM J. OLSON, P.C.

Attorney for U.S. Justice 370 Maple Avenue West 

Foundation Suite 4

Vienna, VA 22180-5615

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

May 13, 2013