ORAL ARGUMENT SCHEDULED SEPTEMBER 30, 2013, 9:30 AM

No. 13-5162

IN THE

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

WENDY E. WAGNER, ET AL., 

Appellants,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

On Appeal from the United States District Court

for the District of Columbia

CORRECTED BRIEF OF AMICI CURIAE

CENTER FOR COMPETITIVE POLITICS AND 

CATO INSTITUTE IN SUPPORT OF APPELLANTS

AND URGING REVERSAL

ALLEN DICKERSON ILYA SHAPIRO

Counsel of Record CATO INSTITUTE

CENTER FOR COMPETITIVE POLITICS 1000 Massachusetts Ave., NW

124 S. West St., Suite 201 Washington, DC 20001

Alexandria, Virginia 22314 (202) 218-4600

(703) 894-6800

July 11, 2013 Counsel for Amici Curiae

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No. 13-5162

CERTIFICATE AS TO PARTIES AND RULINGS

(A) Parties & Amici: All parties, intervenors, and Amici appearing before the 

district court and in this Court are listed in the Brief for Appellant.

(B) Rulings Under Review: References to the rulings at issue appear in the 

Brief for Appellant.

(C) Related Cases: This case was before this Court as No. 12-5365. On May 

31, 2013, this Court vacated the rulings below and remanded the case for 

certification under 2 U.S.C. § 437h. JA 243-262, 2013 U.S. App. LEXIS 

10963.

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CORPORATE DISCLOSURE STATEMENT

Amicus Curiae Center for Competitive Politics, a nonprofit corporation 

organized under the laws of Virginia, hereby states that it has no parent companies, 

subsidiaries, or affiliates and that it does not issue shares to the public. 

Amicus Curiae Cato Institute, a nonprofit corporation organized under the 

laws of Kansas, hereby states that it has no parent companies, subsidiaries, or 

affiliates and that it does not issue shares to the public. 

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES AND RULINGS...............................................i

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

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

SUMMARY OF ARGUMENT...........................................................................................3

ARGUMENT .................................................................................................................5

I. Strict scrutiny is appropriate in the context of an absolute ban on political 

contributions by individuals.......................................................................5

A. Since Buckley v. Valeo, the United States Supreme Court has 

recognized that limits on individual contributions impinge upon 

fundamental constitutional rights..........................................................5

B. This case is novel because while there are judicial decisions 

discussing limitations on individual contributions, and cases 

discussing bans on corporate expenditures, decisions that address bans 

on individual contributions are rare ......................................................7

C. In its only assessment of an absolute ban on individual political 

contributions, the Supreme Court invalidated the ban and did not 

foreclose the possibility that strict scrutiny is appropriate in such 

contexts..................................................................................................8

D. Strict scrutiny should apply to laws banning individual 

contributions........................................................................................10

II. Regardless of the applicable level of scrutiny, § 441c is not adequately 

tailored to the asserted governmental interest, and is consequently 

constitutionally overbroad........................................................................11

A. The requirement that limitations on First Amendment liberties be 

carefully tailored applies under both strict scrutiny and less rigorous 

review, and in both campaign finance and other contexts..................11

B. An overly broad statute necessarily fails this mandatory tailoring 

analysis................................................................................................12

III. Deference to Congress is inappropriate here, because § 441c was not the 

result of a meaningful exercise of legislative discretion..........................15

CONCLUSION.............................................................................................................18

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TABLE OF AUTHORITIES

CASES

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002).........................................................................................13

Bluman v. FEC,

2012 U.S. LEXIS 310 (Jan. 9, 2012)...............................................................10

Bluman v. FEC,

800 F. Supp. 2d 281 (D.D.C. 2011).................................................................10

*Buckley v. Valeo,

424 U.S. 1 (1986)........................................................................... 3, 5-9, 11, 12

Cal. Med. Ass'n v. FEC,

453 U.S. 182 (1981)...........................................................................................7

Citizens Against Rent Control v. Berkeley,

454 U.S. 290 (1981).........................................................................................15

Citizens United v. FEC,

558 U.S. 310 (2010).................................................................................1, 8, 15

Davis v. FEC,

554 U.S. 724 (2008)...........................................................................................5

FEC v. Mass. Citizens for Life,

479 U.S. 238 (1986)...........................................................................................8

FEC v. Nat'l Conservative Political Action Comm.,

470 U.S. 480 (1985)...................................................................................14, 15

FEC v. Nat'l Right to Work Comm.,

459 U.S. 197 (1982).........................................................................................13

Green Party of Conn. v. Garfield,

616 F. 3d 189 (2nd Cir. 2010)...........................................................................16

Knox v. SEIU, Local 1000,

132 S. Ct. 2277 (2012).....................................................................................12

Lair v. Bullock,

697 F.3d 1200 (9th Cir. 2012).............................................................................5

*McConnell v. FEC,

540 U.S. 93 (2003)...........................................................................9, 10, 13, 15

*Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000).....................................................................................5, 12

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*Randall v. Sorrell,

548 U.S. 230 (2006).................................................................................5, 7, 12

United States v. Williams,

553 U.S. 285 (2008).........................................................................................13

Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton,

536 U.S. 150 (2002).........................................................................................12

STATUTES

*2 U.S.C. § 441c .......................................................................... 3, 4, 7, 8, 11, 14-16

*BCRA § 318.................................................................................................9, 10, 13

OTHER AUTHORITIES

148 Cong. Rec. H. 444.............................................................................................17

148 Cong. Rec. H. 446.............................................................................................17

148 Cong. Rec. H. 449.............................................................................................17

148 Cong. Rec. S. 2146-48 ........................................................................................9

*Cases and authorities chiefly relied upon are indicated with an asterisk.

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GLOSSARY

BCRA Bipartisan Campaign Reform Act

FEC Federal Election Commission

FECA Federal Election Campaign Act

PAC Political Action Committee

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INTEREST OF AMICI CURIAE1

Founded in 2005 by former Federal Election Commission Chairman Bradley 

Smith, Amicus Curiae Center for Competitive Politics (“CCP”) is a 501(c)(3) 

organization that seeks to educate the public about the effects of money in politics 

and the benefits of increased freedom and competition in the electoral process. 

CCP works to defend the First Amendment rights of speech, assembly, and petition 

through scholarly research and state and federal litigation. CCP has participated in 

many of the notable cases concerning campaign finance laws and restrictions on 

political speech, including Citizens United v. FEC, 558 U.S. 310 (2010) and 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc).

Amicus Curiae Cato Institute was established in 1977 as a nonpartisan public 

policy research foundation dedicated to advancing the principles of individual 

liberty, free markets, and limited government. Cato’s Center for Constitutional 

Studies was established in 1989 to help restore the principles of limited 

constitutional government that are the foundation of liberty. Toward those ends, 

the Cato Institute publishes books and studies, conducts conferences and forums, 

publishes the annual Cato Supreme Court Review, and files amicus briefs with the 

courts. This case is of central concern to Cato because it addresses the further 

 1 No person other than Amici contributed money intended to fund the preparation 

or submission of this brief, which was authored solely by counsel for Amici.

Pursuant to Rule 29(a) of this Court, all parties have consented to the filing of this 

brief.

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collapse of constitutional protections for political activity, which lies at the very 

heart of the First Amendment.

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SUMMARY OF ARGUMENT

Since the landmark case of Buckley v. Valeo, the Supreme Court has 

recognized that monetary limits on individual contributions implicate fundamental 

constitutional protections of both association and speech. This case presents a 

starker constitutional question. Rather than merely limiting contributions, 2 U.S.C. 

§ 441c entirely bans contributions by a class of individual citizens. The standard of 

review in such a situation is a question of first impression. But in a comparable 

situation, the Supreme Court invalidated a provision of the Bipartisan Campaign 

Reform Act (“BCRA”) banning political contributions by minors. Consequently, 

while no decision specifically reaches the question, Amici submit that strict 

scrutiny is appropriate in this novel context.

But even if strict scrutiny does not apply, a statute impinging on 

fundamental rights must be carefully tailored to a sufficiently important 

governmental interest, which § 441c is not. Indeed, the Supreme Court has never 

upheld a ban like 2 U.S.C. § 441c. And even when upholding limitations on 

individual contributions, the Supreme Court has required the government to have

established that the law is appropriately tailored. The FEC has failed to do so here.

This lack of tailoring—and the statute’s resulting overbreadth—is 

unsurprising where, as here, Congress did not meaningfully exercise legislative 

discretion in crafting the contribution ban. Courts are generally reluctant to 

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override the will of Congress in fixing a perceived problem, but Congress may not 

choose an unconstitutional remedy to do so, as it has in the case of § 441c.

For the foregoing reasons, this case can and should be decided in favor of 

Appellants on the basis of familiar First Amendment analysis.

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ARGUMENT

I. Strict scrutiny is appropriate in the context of an absolute ban on 

political contributions by individuals.

This case presents an unusual question. While suits challenging limits on 

political contributions are familiar,2 the statute at issue here completely prohibits a 

broad group of private, individual citizens from making any contribution. Such 

sweeping prohibitions are seldom enacted, and courts have rarely assessed their 

constitutionality. Nevertheless, the limited pronouncements made by the Supreme 

Court on the subject suggest that strict scrutiny is the appropriate standard of 

review in this instance.

A. Since Buckley v. Valeo, the United States Supreme Court has 

recognized that limits on individual contributions impinge upon 

fundamental constitutional rights. 

In the seminal case of Buckley v. Valeo, the Supreme Court reviewed the 

individual contribution limits imposed by the Federal Election Campaign Act 

(FECA). The Court noted that “the primary First Amendment problem raised by 

the Act’s contributions limitations...[was the law’s] restriction of one aspect of the 

contributor’s freedom of political association.” Buckley, 424 U.S. 1, 24 (1976). But 

 2 See, e.g., Randall v. Sorrell, 548 U.S. 230 (2006) (invalidating state’s 

contribution limits as impermissibly low); Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377 (2000) (upholding state limitations on contributions to state candidates);

Davis v. FEC, 554 U.S. 724 (2008) (invalidating asymmetrical contribution limits 

triggered by candidate spending); Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) 

(considering constitutionality of state limits on campaign contributions).

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the Court noted the importance of that right, stating that “the right of association is 

a ‘basic constitutional freedom,’ that is ‘closely allied to freedom of speech and a 

right which, like free speech, lies at the foundation of a free society.’”3 Buckley, 

424 U.S. at 25 (citing Kusper v. Pontikes, 414 U.S. 51, 57 (1973); Shelton v. 

Tucker, 364 U.S. 479, 486 (1960)).

While the Buckley Court upheld FECA’s imposition of a $1,000-perindividual limit on contributions to candidates, the Court carefully reviewed the 

contribution limit under heightened scrutiny. Id. at 25. The Court demanded that 

“the State demonstrate[] a sufficiently important interest and employ[] means 

closely drawn to avoid unnecessary abridgment” of the basic constitutional 

freedom threatened by the law. Id. The Court only upheld the individual limits 

after determining that the threat of corruption, or the appearance of corruption, 

stemming from large contributions might damage “the integrity of our system of 

representative democracy” itself, and the limit “focuse[d] precisely on the problem 

of large campaign contributions—the narrow aspect of political association where 

 3 The Court also noted that contributions have a speech element. Buckley v. Valeo, 

424 U.S. at 20-21. While the Court noted that “a limitation upon the amount that 

any one person or group may contribute to a candidate or political committee 

entails only a marginal restriction upon the contributor’s ability to engage in free 

communication,” an outright ban on such speech hardly qualifies as “marginal.” Id.

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the actuality and potential for corruption...[were] identified.”4 Id. at 26-27, 28

(emphasis supplied).

This case presents a starker constitutional question than that present in 

Buckley. For § 441c is not simply a limit, but rather a complete ban on individual 

contributions.

B. This case is novel because while there are judicial decisions

discussing limitations on individual contributions, and cases 

discussing bans on corporate expenditures, decisions that address

bans on individual contributions are rare.

Both individuals and groups, including incorporated entities, have 

challenged restrictions on the right to make political contributions. The majority of 

these cases address one of two situations. One line of cases concerns individual 

contribution limits, such as Cal. Med. Ass'n v. FEC, 453 U.S. 182, 201 (1981), 

which upheld a $5,000 limit on individual contributions to multicandidate 

committees. Other cases in this vein include Randall v. Sorrell which, in 

invalidating Vermont’s individual contribution limits as impermissibly low, 

recognized “that contribution limits might sometimes work more harm to protected 

First Amendment interests than their anti-corruption objectives [can] justify.” 548 

U.S. 230, 247-48 (2006).

 4 The remaining limits—from PACs to candidates and an overall, aggregate limit—

were upheld because they prevented the evasion of the $1,000 individual limit. 

Buckley, 424 U.S. at 35-36, 38.

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Though corporate contributions to candidates have long been illegal, a 

second species of campaign finance case addresses bans on corporate expenditures. 

Cases considering such bans include Citizens United v. FEC, 558 U.S. 310 (2010), 

which invalidated a ban on corporate independent expenditures, and FEC v. Mass. 

Citizens for Life, 479 U.S. 238 (1986), which held that—as applied to a nonprofit 

advocacy corporation—FECA’s ban on independent expenditures was 

unconstitutional.

The statute at issue here falls outside the bounds of either of these lines of 

cases. Indeed, § 441c is not a Buckley-style limit on the individual right to 

contribute, it is a wholesale prohibition on the exercise of that right. But most of 

the precedent addressing bans does not resolve the question here, because those 

cases are distinguishable on two important grounds: first, they address 

expenditures, rather than contributions; and second, the entities at issue in those 

cases were not individual citizens.

In fact, the only Supreme Court case that directly addressed a ban on 

individual contributions supports Amici’s contention that strict scrutiny is 

appropriate for laws that eliminate individual contribution rights.

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C. In its only assessment of an absolute ban on individual political 

contributions, the Supreme Court invalidated the ban and did not 

foreclose the possibility that strict scrutiny is appropriate in such 

contexts.

Amici were able to identify just one case where the Supreme Court 

considered a complete prohibition on political contributions by a large group of 

individual citizens—McConnell v. FEC, 540 U.S. 93 (2003). In that case, the Court 

invalidated BCRA § 318, which banned political contributions by minors. The 

McConnell Court reiterated what Buckley and its progeny had already 

established—that heightened scrutiny applies to contribution limits—noting: 

“[l]imitations on the amount that an individual may contribute to a candidate or 

political committee impinge on the protected freedoms of expression and

association. When the Government burdens the right to contribute, we apply 

heightened scrutiny.” Id. at 231-232.

The Court went on to invalidate § 318’s ban because, “[m]inors enjoy the 

protection of the First Amendment...The Government asserts that the provision 

protects against corruption by conduit; that is, donations by parents through their 

minor children to circumvent contribution limits applicable to the parents. But the 

Government offers scant evidence of this form of evasion.” Id. at 232.5

 5 Upon independent review of the relevant legislative history, Amici located 

roughly two and a half Congressional Record pages of information entered into the 

record by Senator John McCain supporting the view that such “corruption by 

conduit” was taking place. 148 Cong. Rec. S. 2146-48.

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Satisfied that the ban on minor contributions failed the heightened scrutiny 

applicable to restrictions on individual contribution rights, the McConnell Court 

did not reach the question of whether a higher level of scrutiny is appropriate for 

laws that completely ban these contributions. After finding “scant evidence” 

supporting the ban, the Court concluded that “[a]bsent a more convincing case of 

the claimed evil, [the corruption by conduit] interest is simply too attenuated for § 

318 to withstand heightened scrutiny.” Id.

D. Strict scrutiny should apply to laws banning individual 

contributions. 

Despite the lack of a directly applicable judicial pronouncement, prior court 

decisions indicate that strict scrutiny should be applied in this context. Indeed, the 

Supreme Court has never upheld a complete ban on political contributions by a 

certain type of individual, law-abiding American citizen.

6 And even when 

upholding limits on the amounts individuals may contribute, the Court has 

emphasized that such limits must be carefully drawn to protect the safeguards of 

the First Amendment.

 6 The Supreme Court did recently uphold a complete ban on non-citizen 

contributions. Bluman v. FEC, 2012 U.S. LEXIS 310 (Jan. 9, 2012); summarily 

aff’g Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011). But, as that case noted, 

while “the First Amendment issues raised by campaign finance laws...[are] the 

subject of great debates,..[t]his case does not implicate those debates. Rather, this 

case raises a preliminary and foundational question about the definition of the 

American political community, and, in particular, the role of foreign citizens in the 

U.S. electoral process.” Bluman, 800 F. Supp. 2d at 286.

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Indeed, in Buckley, the Court upheld the individual contribution limits 

because they were appropriately tailored to prevent actual or apparent corruption, 

while still affording some level of protection to speech and association rights. 424 

U.S. at 28-29. By contrast, FECA’s expenditure limitations were not so carefully 

drawn, and consequently, weighed too heavily against political expression. Id. at 

39. As a result, the Buckley Court was compelled to construe FECA in such a way 

as to render it consistent with First Amendment protections. Id. at 41-42.

In this case, Amici urge this Court to consider both the extraordinary nature 

of § 441c’s wholesale ban on individual contributions, and weigh the severity of 

that restriction against the sanctity of the First Amendment freedoms that it 

implicates. Amici submit that strict scrutiny is the only way to adequately balance 

these interests.

II. Regardless of the applicable level of scrutiny, § 441c is not 

adequately tailored to the asserted governmental interest, and is 

consequently constitutionally overbroad.

A. The requirement that limitations on First Amendment liberties be 

carefully tailored applies under both strict scrutiny and less 

rigorous review, and in both campaign finance and other contexts.

Even if this Court does not apply strict scrutiny to § 441c, no burden on 

political speech can survive constitutional analysis if it is not tailored to the 

asserted governmental interest. A valid First Amendment challenge to contribution 

limits, for example, must raise an “issue about the adequacy of [a]...statute's 

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tailoring to serve its purposes.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 395 

(2000). And consistent with this requirement, the Randall Court’s invalidation of 

Vermont’s contribution limits was based on its finding that the state had “fail[ed] 

to satisfy the First Amendment's requirement of careful tailoring.” 548 U.S. at 237.

This tailoring requirement persists in areas of First Amendment 

jurisprudence outside the campaign finance context. In Watchtower Bible & Tract 

Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 168 (2002), for example, the 

Supreme Court invalidated a prohibition on religious leafleting without a permit, 

noting, “[t]he breadth and unprecedented nature of this regulation does not alone 

render the ordinance invalid. Also central to our conclusion that the ordinance does 

not pass First Amendment scrutiny is that it is not tailored to the Village's stated 

interests.” See also Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2283 (2012)

(reiterating the “requirement that [union] fee-collection procedures be carefully 

tailored to minimize impingement on First Amendment rights.”).

Indeed, proper tailoring is crucial to the protection of First Amendment

liberties. Insufficiently tailored legislation may ban too much activity, thereby 

unconstitutionally chilling speech, or it may burden the right to associate—a 

particular worry in the political context. See, e.g., Buckley, 424 U.S. at 14 (“there is 

practically universal agreement that a major purpose of [the First] Amendment was 

to protect the free discussion of governmental affairs...of course includ[ing] 

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discussions of candidates....”) (internal citation omitted); FEC v. Nat'l Right to 

Work Comm., 459 U.S. 197, 209 (1982) (discussing tailoring of corporate and 

labor union contribution ban).

B. An overly broad statute necessarily fails this mandatory tailoring 

analysis.

Regardless of the level of scrutiny that applies, a statute fails this mandatory

tailoring analysis if it is overly broad. Indeed, “[t]he overbreadth doctrine prohibits 

the Government from banning unprotected speech if a substantial amount of 

protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech 

Coal., 535 U.S. 234, 255 (2002). The purpose of the overbreadth doctrine is to 

“strike a balance between competing social costs.” United States v. Williams, 553 

U.S. 285, 292 (2008), and it is premised on the idea that “the threat of enforcement 

of an overbroad law deters people from engaging in constitutionally protected 

speech.” Id.

It is unsurprising, then, that overbreadth analysis has been dispositive in 

several Supreme Court decisions invalidating campaign finance laws for lack of 

appropriate tailoring. Indeed, overbreadth was central to the McConnell Court’s 

reasoning in striking down BCRA § 318. As the Court put it, “[e]ven assuming, 

arguendo, the Government advances an important interest, the [ban on minor 

contributions] is overinclusive. The States have adopted a variety of more tailored 

approaches—e.g., counting contributions by minors against the total permitted for 

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a parent or family unit, imposing a lower cap on contributions by minors, and 

prohibiting contributions by very young children. Without deciding whether any of 

these alternatives is sufficiently tailored, we hold that the provision here sweeps 

too broadly.” 540 U.S. at 232.

Also engaging in overbreadth analysis, FEC v. Nat'l Conservative Political 

Action Comm., 470 U.S. 480, 498 (1985) (“NCPAC”) invalidated a limit on 

political committee expenditures spent to elect candidates who had accepted public 

financing. The Court reasoned, “[e]ven were we to determine that the large pooling 

of financial resources by [plaintiff independent political committees] did pose a 

potential for corruption or the appearance of corruption, [the challenged statute] is 

a fatally overbroad response to that evil. It is not limited to multimillion dollar war 

chests; its terms apply equally to informal discussion groups that solicit 

neighborhood contributions to publicize their views about a particular Presidential 

candidate.” The Court went on to distinguish that statute from limitations that 

could conceivably survive a tailoring analysis: “[w]e are not quibbling over finetuning of prophylactic limitations, but are concerned about wholesale restriction of 

clearly protected conduct.” Id. at 501 (citing Broadrick v. Oklahoma, 413 U.S. 601 

(1973)).

Section 441c suffers from similarly fatal overbreadth. Even assuming that 

there is a valid anticorruption interest served by limiting the influence of 

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government contractors in campaign finance, § 441c is in no way limited or 

tailored to restrict only the contributions of parties that present such a risk. Instead, 

like the ban on minor contributions invalidated in McConnell, § 441c “sweeps too 

broadly.” 540 U.S. at 232. And this is particularly troubling here, where the 

challenged statute goes beyond the “wholesale restriction of clearly protected 

conduct” invalidated for overbreadth in NCPAC, and reaches the level of an 

absolute ban on private, individual expression. NCPAC, 470 U.S. at 501.

III. Deference to Congress is inappropriate here, because § 441c was not 

the result of a meaningful exercise of legislative discretion.

The Supreme Court has forsworn deferring to Congress at the expense of 

basic constitutional protections. Indeed, “[w]hen Congress finds that a problem 

exists, we must give that finding due deference; but Congress may not choose an 

unconstitutional remedy.” Citizens United, 558 U.S. at 361.

This is particularly so where, as here, there is ample reason to believe a 

challenged law was not the result of an actual exercise of Congressional discretion. 

The available records lacks any indication that § 441c was the result of considered 

legislative judgment. Where this is the case, deference to Congress is inconsistent 

with the required rigorous review of a statute impinging upon First Amendment 

rights.

This is so even if this court applies heightened review falling short of strict 

scrutiny. In Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 301 (1981), 

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Justice Marshall explained the requirements of heighted scrutiny. In order for a 

measure to survive, “the record...[must] disclose [] sufficient evidence to justify 

the conclusion that” contributions in excess of the limits at issue would 

“undermine[] the confidence of the citizenry in government.” (Marshall, J., 

concurring) (internal citations and quotations omitted). Amici submit that sufficient 

evidence is wanting here.

The District Court’s Memorandum Opinion relies heavily upon a 1940 

corruption scandal that motivated an early iteration of the Hatch Act. Mem. Op. at 

11. The District Court also relies heavily on one Second Circuit case, Green Party 

of Conn. v. Garfield, 616 F. 3d 189 (2d Cir. 2010), which found that a state 

legislature’s concern about a highly-publicized, ongoing corruption scandal was 

sufficient to justify deference to their conclusion that a ban on contractor 

contributions would combat the appearance of corruption. The District Court 

considered no evidence of any specific scandal, other than the one apparently 

contemplated in 1940. Moreover, it considered no evidence that Congress intended 

to reach individuals like Wendy Wagner with its enactment of § 441c.

In an independent review of the relevant legislative history, Amici located no 

evidence that Congress even mentioned the possibility that individual government 

contractors pose a threat of actual or apparent corruption. Indeed, searches of the 

Senate cloture debate leading up to BCRA’s enactment returned no results dealing 

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with contractors or contributions by government employees. And the only 

mentions of government employee contributions in the House did not contemplate 

individual contractors like the appellants here.7

Thus, no matter the level of constitutional scrutiny this Court applies, 

deference to the legislature is inappropriate in this case. Neither the district court 

nor Congress highlighted any credible evidence that corruption might result from 

the political contributions appellants wish to make. Nor did the FEC provide 

evidence supporting the Congress’s judgment, or even evidence suggesting that 

such a judgment was made with regard to individual contractors. On this record, no 

sufficient scrutiny, whether strict or merely heightened, has been applied. 

 7 Amici searched the congressional record leading up to the enactment of BCRA 

for variances of “contractor,” “employee,” “worker,” and “Hatch Act.” These 

searches returned three partially relevant results. Rep. Roger Wicker mentioned in 

passing—and in fact, erroneously—that active-duty military could not contribute 

when he served. 148 Cong. Rec. H. 449. Rep. Jo Ann Emerson introduced a failed 

amendment which would allow Federal employees to raise soft money at state or 

local events only. 148 Cong. Rec. H. 444. Rep. Christopher Shays explained his 

preference for simply leaving Federal employees out of the soft money raising 

process altogether. 148 Cong. Rec. H. 446.

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CONCLUSION

This case presents the peculiar question of whether a statute may prohibit 

private individual citizens from making any political contribution. For the 

foregoing reasons, Amici Center for Competitive Politics and Cato Institute urge 

this Court to reverse the district court, and answer this question in the negative. 

Respectfully Submitted,

Allen Dickerson 

Counsel of Record

Bar No. 54137

Center for Competitive Politics

124 S. West St., Suite 201

Alexandria, Virginia 22314

(703) 894-6800

Ilya Shapiro

Cato Institute

1000 Massachusetts Ave., NW

Washington, DC 20001

(202) 218-4600

Counsel for Amici Curiae

Dated: July 11, 2013

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No. 13-5162

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B). This brief contains 3,599 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Office 

Word 2010 in Times New Roman 14 point font.

/s/ Allen Dickerson

Allen Dickerson 

Center for Competitive Politics

124 S. West St., Suite 201

Alexandria, Virginia 22314

(703) 894-6800

Dated: July 11, 2013

USCA Case #13-5162 Document #1446114 Filed: 07/11/2013 Page 26 of 28
20

No. 13-5162

CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of July, 2013, I caused the foregoing 

Corrected Brief of Amici Curiae Center for Competitive Politics and Cato Institute 

to be filed electronically using this Court’s CM/ECF System and sent via the ECF 

Electronic notification system to all CM/ECF registered counsel of record:

Counsel for Appellant Wagner, et al.:

Alan B. Morrison

George Washington University

2000 H Street, NW

Washington, DC 20052

(202) 994-7120

abmorrison@law.gmu.edu

Arthur B. Spitzer

ACLU of the National Capital Area

4301 Connecticut Ave. NW, Ste. 434

Washington, DC 20008

(202) 457-0800

artspitzer@gmail.com

Counsel for Appellee Federal Election Commission:

Seth Nesin

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1528

snesin@fec.gov

Counsel for Amici Curiae:

J. Gerald Hebert

Tara Malloy

Paul S. Ryan

Megan McAllen

The Campaign Legal Center

215 E Street, NE

Washington, DC 20002

(202) 736-2200

USCA Case #13-5162 Document #1446114 Filed: 07/11/2013 Page 27 of 28
21

Courtesy copies of the foregoing Brief of Amici Curiae Center for 

Competitive Politics and Cato Institute were sent via first class mail to counsel for 

appellant, counsel for appellee, and counsel for Amici Curiae. 

I further certify that I also caused the requisite number of paper copies of 

this brief to be filed with the Clerk of this Court on the 11th day of July, 2013.

/s/ Allen Dickerson

Allen Dickerson 

Center for Competitive Politics

124 S. West St., Suite 201

Alexandria, Virginia 22314

(703) 894-6800

USCA Case #13-5162 Document #1446114 Filed: 07/11/2013 Page 28 of 28