No. 12-536

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States 

————

SHAUN MCCUTCHEON AND

FEDERAL ELECTION COMMITTEE,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

————

On Appeal from the United States District Court

for the District of Columbia

————

AMICUS CURIAE BRIEF OF THE

AMERICAN CIVIL RIGHTS UNION

IN SUPPORT OF APPELLANTS

————

PETER J. FERRARA

Counsel of Record

20594 Woodmere Court

Sterling, VA 20165

(703) 582-8466

peterferrara@msn.com

Counsel for Amicus Curiae

American Civil Rights Union

May 8, 2013
(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................ ii

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

STATEMENT OF THE CASE ............................ 2

SUMMARY OF ARGUMENT............................. 4

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

I. THE AGGREGATE LIMITS IN 

TODAY’S FEDERAL CAMPAIGN 

FINANCE LAW UNCONSTITUTIONALLY VIOLATE FREEDOM OF 

POLITICAL SPEECH AND FREEDOM 

OF POLITICAL ASSOCIATION.............. 5

A. The $74,600 Aggregate Limit on 

Contributions to Non-Candidate 

Committees Is Unconstitutional......... 7

B. The Additional $48,600 Aggregate 

Limit on Contributions to State 

Party Committees and PACs Is 

Unconstitutional.................................. 9

C. The $48,600 Aggregate Limit on 

Contributions to Candidates Is 

Unconstitutional.................................. 10

CONCLUSION .................................................... 12
ii

TABLE OF AUTHORITIES

CASES Page(s)

Arizona Free Enterprise Club’s Freedom 

Club PAC v. Bennett, 131 S. Ct. 2806 

(2011)......................................................... 6

Boos v. Barry, 485 U.S. 312 (1988) .............. 6

Buckley v. Valeo, 424 U.S. 1 (1976) ......2, 5, 6, 7, 8

Citizens Against Rent Control v. Berkeley, 

454 U.S. 290 (1981)................................... 6

Citizens United v. FEC, 130 S. Ct. 876 

(2010)......................................................... 8, 11

Davis v. FEC, 554 U.S. 724 (2008) .............. 6

EMILY’s List v. FEC, 581 F.3d 1 (D.C.Cir. 

2009).......................................................... 8

FEC v. Colorado Republican Federal 

Campaign Committee, 518 U.S. 604 

(1996)......................................................... 8

FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986)........................... 6, 7

FEC v. National Conservative Political 

Action Committee, 470 U.S. 480 (1985).... 6, 7, 8

FEC v. Wisconsin Right to Life, 127 S. Ct. 

2652 (2007)................................................ 6, 7

First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978)................................... 6, 7

McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995)................................... 6

Williams v. Rhodes, 393 U.S. 23 (1968)....... 7
iii

TABLE OF AUTHORITIES—Continued

STATUTES Page(s)

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

2 U.S.C. 441a(a)(3)(B) .................................. 2
INTEREST OF THE AMICUS CURIAE 1

The American Civil Rights Union is a nonpartisan, non-profit, 501(c)(3), legal/educational 

policy organization dedicated to defending all of our 

constitutional rights, not just those that might be 

politically correct or fit a particular ideology. It was 

founded in 1998 by long time policy advisor to 

President Reagan, and the architect of modern 

welfare reform, Robert B. Carleson. Carleson served 

as President Reagan’s chief domestic policy advisor 

on federalism, and originated the concept of ending 

the federal entitlement to welfare by giving the 

responsibility for those programs to the states 

through finite block grants. Since its founding, the 

ACRU has filed amicus curiae briefs on constitutional 

law issues in cases nationwide. 

Those setting the organization’s policy as 

members of the Policy Board are former U.S. 

Attorney General, Edwin Meese III; former Assistant 

Attorney General for Civil Rights, William Bradford 

Reynolds; former Assistant Attorney General for the 

Office of Legal Counsel, Charles J. Cooper; John M. 

Olin Distinguished Professor of Economics at George 

Mason University, Walter E. Williams; former 

Ambassador Curtin Winsor, Jr.; former Assistant 

Attorney General for Justice Programs, Richard 

 1 Peter J. Ferrara authored this brief for the American Civil 

Rights Union (ACRU). No counsel for either party authored the 

brief in whole or in part and no one apart from the ACRU made 

a monetary contribution to the preparation or submission of this 

brief. All parties were timely notified and have consented to the 

filing of this brief.
2

Bender Abell and former Ohio Secretary of State J. 

Kenneth Blackwell. 

This case is of interest to the ACRU because 

we are concerned to protect the constitutional rights 

of all Americans, regardless of political correctness, 

including the First Amendment Right to Freedom of 

Speech.

STATEMENT OF THE CASE

Campaign finance law includes “base limits” 

restricting direct, total contributions to individual 

candidates, political parties, and PACs, 2 U.S.C. 

441a(a)(1), and “aggregate limits” limiting total 

contributions combined to each and all of these 

entities in each election cycle, 2 U.S.C. 441a(a)(3). 

See MB-App. 17a (FEC, Contribution Limits for 2013-

2014).

The base limits were upheld as constitutional 

in Buckley v. Valeo, 424 U.S. 1 (1976) based on an 

anti-corruption interest in justification for the 

restriction. The aggregate limits were upheld in 

order to prevent evasion of the base limits, through 

contributions to parties and committees that the 

contributor knows or believes would be passed 

through to the contributor’s favored candidate. The 

aggregate limits were upheld based on a different, 

anti-circumvention interest to justify the restriction.

Plaintiff McCutcheon filed suit challenging the 

aggregate limit (currently $74,600) on contributions 

to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), 

as unconstitutional. McCutcheon wanted to con-
3

tribute $25,000 each to the Republican National 

Committee (“RNC”), National Republican Senatorial 

Committee (“NRSC”), and National Republican 

Congressional Committee (“NRCC”) during the 2012 

election cycle, but was prohibited from doing so by 

the aggregate limit.

McCutcheon’s suit also challenged the 

aggregate limit (currently $48,000) on contributions 

to candidate committees, 2 U.S.C. 441a(a)(3)(A), as 

unconstitutional. At the time of suit, McCutcheon 

had contributed $33,088 to federal candidates and 

wanted to contribute another $21,312 to such

candidates, but was prohibited from doing so by the 

aggregate limit.

Plaintiff Republican National Committee 

(RNC) is also a party to the suit, and challenges the 

aggregate limit on contributions to non-candidate 

committees as well. The RNC wants to receive such 

contributions but is prohibited from doing so by the 

aggregate limit. 

Plaintiff-Appellants desire to engage in such 

actions in the future, if they are not prohibited from 

doing so by the aggregate limits. But if they are not 

relieved from the limits, their rights to freedom of 

speech and association will be abridged, which would 

subject them to irreparable harm.

Plaintiff-Appellants filed their Verified 

Complaint in the United States District Court for the 

District of Columbia on June 22, 2012. On 

September 28, the District Court granted the FEC’s 

motion to dismiss. JS-App. 1a, 17a. Plaintiff-
4

Appellants noticed this appeal on October 10. JSApp. 18a. 

SUMMARY OF ARGUMENT

The liberty interests at issue in this case 

include the core First Amendment activity – political 

speech – and the fundamental liberty interest of 

freedom of association. These core, fundamental, 

liberty interests of the First Amendment are entitled 

in our law to the highest possible protection – strict 

scrutiny. 

Under strict scrutiny, restrictions on political 

speech and political association can only be allowed 

where they are justified by a compelling state 

interest, and only where the restrictions are narrowly 

tailored to serve that interest.

This Court has held that the only compelling 

state interest that can justify infringing such basic, 

core liberties is to prevent quid-pro-quo corruption, 

trading campaign contributions for political favors. 

That is the compelling interest that served to justify 

the base limits on campaign contributions.

But the aggregate limits serve no anticorruption interest beyond what is already served by 

the base limits, and no other compelling state 

interest that can justify the infringement of these 

most basic, core, Constitutional liberties. That 

applies to the $74,600 aggregate limit on 

contributions to non-candidate committees. It 

applies to the $48,600 aggregate limit on 

contributions to state and local political parties and 
5

PACs. And it applies to the $48,600 aggregate 

contribution to candidate committees.

We respectfully submit that this Court should 

consequently reverse the court below, and strike 

down all these aggregate limits as unconstitutional. 

ARGUMENT

I. THE AGGREGATE LIMITS IN 

TODAY’S FEDERAL CAMPAIGN 

FINANCE LAW UNCONSTITUTIONALLY VIOLATE FREEDOM OF 

POLITICAL SPEECH AND FREEDOM 

OF POLITICAL ASSOCIATION.

The liberty interest at issue in this case is the 

core First Amendment activity – political speech. 

Contributors speak in the contributions they make, 

and those contributions are used to finance the 

political speech of a political campaign. As the Court 

said in Buckley, “[C]ontribution and expenditure 

limitations . . . [affect] the most fundamental First 

Amendment activities.” 424 U.S. at 14.

This case also involves the fundamental liberty 

interest of freedom of association. Contributors 

associate themselves with candidates, campaigns, 

and political parties through political contributions 

such as those at issue in this case. Such freedom of 

political association, in particular, is another core 

First Amendment activity. As this Court also said in 

Buckley, “[T]he First . . . Amendment[] guarantees 

freedom to associate with others for the common 
6

advancement of political beliefs and ideas, a freedom 

that encompasses (t)he right to associate with the 

political party of one’s choice.” Id. at 15 (citations and 

quotation marks omitted).

This Court in Buckley added, “Making a 

contribution, like joining a political party, serves to 

affiliate a person with a candidate [or a political 

party]. . . . [I]t enables like-minded persons to pool 

their resources in furtherance of common political 

goals.” Id. at 22.

The freedom to engage in core political speech, 

not pornography or nude dancing, has been 

recognized since the Founding as a fundamental 

foundation of our democracy, and the freedom of 

political association, forming political parties and 

campaigns, is just as important. 

These core, fundamental, liberty interests of the 

First Amendment are consequently entitled in our 

law to the highest possible protection – strict 

scrutiny. E.g., Citizens Against Rent Control v. 

Berkeley, 454 U.S. 290, 300(1981) (“to limit the right 

of association places an impermissible restraint on

. . . expression.”); Arizona Free Enterprise Club’s 

Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011);

Davis v. FEC, 554 U.S. 724,744 (2008); FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986)(“MCFL”); First National Bank of Boston v. 

Bellotti, 435 U.S. 765 (1978); McIntyre v. Ohio 

Elections Commission, 514 U.S. 334 (1995); Boos v. 

Barry, 485 U.S. 312 (1988); FEC v. Wisconsin Right 

to Life, 127 S. Ct. 2652 (2007); FEC v. National 
7

Conservative Political Action Committee, 470 U.S. 

480 (1985)(“NCPAC”); Williams v. Rhodes, 393 U.S. 

23 (1968). 

Can we possibly contemplate in these United 

States downgrading the constitutional protection for 

political speech below the highest level accorded to 

some other rights? Are we about to the point where 

we accord higher protection to pornography, nude 

dancing, and abortion than to the core political 

speech that has always been the foundation of our 

democracy?

Under strict scrutiny, restrictions on political 

speech and political association can only be allowed 

where they are justified by a compelling state 

interest, and only where the restrictions are narrowly 

tailored to serve that interest. E.g., Buckley; MCFL; 

NCPAC; Bellotti; Wisconsin Right to Life.

The base limits on contributions to political 

campaigns have been justified by a compelling state 

interest in preventing corruption. As this Court

said in NCPAC, “[P]reventing corruption or the 

appearance of corruption are the only legitimate and 

compelling government interests thus far identified 

for restricting campaign finances.” 470 U.S. at 496-

497. 

A. The $74,600 Aggregate Limit on 

Contributions to Non-Candidate Committees Is Unconstitutional.

Base contribution limits already apply to 

individual contributions to national parties, state and 
8

local parties, and PACs. They are legally justified on 

a quid-pro-quo anti-corruption interest. Buckley;

NCPAC; Citizens United v. FEC, 130 S. Ct. 876 

(2010). Such quid-pro-quo corruption arises when 

elected officials provide political favors for campaign 

contributions. NCPAC; Citizens United.

But the aggregate limits on the non-candidate 

committees serve no anti-corruption interest. Such a 

corruption interest can only arise in relation to 

contributions to a particular candidate, who would 

then be in position to provide political favors in 

return once elected. NCPAC, 470 U.S. at 497; 

Buckley, 424 U.S. at 26; EMILY’s List v. FEC, 581 

F.3d 1, 6 (D.C.Cir. 2009). See also, FEC v. Colorado 

Republican Federal Campaign Committee, 518 U.S. 

604 (1996). PACs, state and local parties, and even 

national political parties do not hold any offices they 

can use to provide political favors in return.

Moreover, without the aggregate limits, the 

base limits would remain, preventing any conceivable, compelling, anti-corruption interest. In 

today’s modern framework of campaign finance 

restrictions, there is no compelling anti-circumvention

interest that can be served by the aggregate limits in 

addition to the base limits in regard to non-candidate 

committees. Consequently, the restrictions on 

political speech and political association involved in 

the aggregate limits on contributions to noncandidate committees are unjustified and 

unconstitutional.
9

B. The Additional $48,600 Aggregate 

Limit on Contributions to State Party 

Committees and PACs Is Unconstitutional.

Besides the $74,600 aggregate limit on 

contributions to non-candidate committees, current 

campaign finance law provides for an additional 

$48,600 aggregate limit on contributions to state 

party committees and PACs. But base contribution 

limits still apply to contributions to state party 

committees and PACs as well. Those base limits

are legally justified again on an anti-corruption 

compelling state interest.

But these additional aggregate limits cannot 

be justified by any anti-corruption interest either. 

They again do not relate to contributions to a 

particular candidate who can provide political favors 

in return. State parties and PACs do not hold elected 

offices empowering them to provide such favors.

Without the aggregate limits, the base limits 

would remain to serve the compelling anti-corruption 

state interest. The modern framework of campaign 

finance restrictions leaves no compelling anticircumvention state interest to be served by the 

aggregate limits. Moreover, it is also true that this 

additional state and local party and PAC aggregate 

limit is not severable from the overall aggregate limit 

on non-candidate committee contributions, which is 

unconstitutional as explained in A. above. Therefore, 

this additional aggregate limit on state and local 

party and PAC contributions is unconstitutional as 

well.
10

C. The $48,600 Aggregate Limit on 

Contributions to Candidates Is 

Unconstitutional.

Base contribution limits of course already 

apply to candidate committees. There is no compelling government interest to justify the additional 

restrictions on political speech and political association involved in the additional $48,600 aggregate 

limit on contributions to all candidate committees 

combined.

The compelling government interest justifying 

the base contribution limits is the same anticorruption concern to prevent the quid-pro-quo

exchange of campaign contributions for political 

favors. But that anti-corruption interest does not 

apply to the aggregate limit on all candidate 

contributions. All candidate contributions would still 

have to comply with the base contribution limits in 

any event.

The aggregate limit puts an absolute limit on 

the political speech and political association of any 

one individual or contributor, infringing on these

most fundamental of constitutional rights. It prevents the contributor from contributing to any 

additional candidates once he or she has reached the 

limit. But that prohibition on contributing to any 

further candidates does not further any anticorruption interest, beyond what is served by the 

base contribution limit that would continue to apply 

to any such further contributions even without the 

aggregate limit. 
11

Most importantly, there is no circumvention 

interest involved in the aggregate limit on candidate 

contributions, serving to enforce the base limit. There 

is no potential that contributions to additional 

candidate committees once the aggregate limit has 

been reached can be contributed with the intent and 

expectation of providing further funds to candidates 

who have already been provided contributions by the 

same contributor up to the base limit. 

If you have already contributed up to the base 

limit to the reelection campaign of California Senator 

Barbara Boxer, for example, contributing in addition 

up to the limit to the reelection campaign of Ohio 

Senator Sherrod Brown is not a viable way of getting 

additional funds to the Boxer campaign.

The real interest behind the aggregate limit on 

candidate committee contributions is really the 

equalizing interest that was rejected by this Court in 

Citizens United v. FEC, 130 S. Ct. 876 (2010). The 

idea is that no one person should be allowed to 

contribute the allowed maximum to more than a few 

federal campaigns. But this Court rejected precisely 

that notion as a compelling state interest justifying 

restrictions on political speech and political association in Citizens United. The policy of the First 

Amendment, the Court recognized in Citizens United, 

is to maximize speech, and the liberty to choose to 

engage in it, not equalizing it through government 

regulation limiting speech.

The aggregate limit on candidate contributions 

is consequently also unconstitutional.
12

CONCLUSION

For all of the foregoing reasons, this Court 

should reverse the decision of the court below,

and find unconstitutional the aggregate limit

on contributions to non-candidate committees, the 

aggregate limit on contributions to state and local 

parties and PACs, and the aggregate limit on 

contributions to candidate committees.

Respectfully submitted,

PETER J. FERRARA

Counsel of Record

20594 Woodmere Court

Sterling, VA 20165

(703) 582-8466

peterferrara@msn.com

Counsel for Amicus Curiae

American Civil Rights Union

May 8, 2013