ORAL ARGUMENT SCHEDULED OCTOBER 31, 2016

No. 16-5194

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LINDA HOLMES AND PAUL JOST,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Certification by the United States District Court for the District of

Columbia, Case No. 1:14-cv-01243-RMC

BRIEF AMICI CURIAE OF CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANT

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

(202) 682-0240

 

J. Gerald Hebert,

 ghebert@campaignlegalcenter.org

 (D.C. Bar No. 447676)

Tara Malloy

Megan McAllen

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

Counsel for Amici Curiae

USCA Case #16-5194 Document #1635913 Filed: 09/15/2016 Page 1 of 40
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED 

CASES

(A) Parties and Amici. Plaintiffs Laura Holmes and Paul Jost 

were the plaintiffs in the district court, and the Federal Election 

Commission (“FEC”) was the defendant in the district court. No person 

filed as amicus curiae before the district court.

(B) Rulings Under Review. Pursuant to an order of a panel of 

this Court, the United States District Court for the District of Columbia 

(Collyer, J.) (June 29, 2016) certified the constitutional question at issue 

to this Court sitting en banc under 52 U.S.C. § 30110. See Amended 

Order, JA 197, Holmes v. FEC, No. 14-cv-1243-RMC (D.D.C. June 29, 

2016), ECF No. 42. The District Court previously made findings of fact 

that it incorporated into its Amended Order. See id. (citing Holmes v. 

FEC, 99 F. Supp. 3d 123, 126-36 (D.D.C. 2015)).

(C) Related Cases. Amici curiae are aware of no “related cases” 

as defined in D.C. Cir. R. 28(a)(1)(C).

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

ii

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CORPORATE DISCLOSURE STATEMENT OF AMICI CURIAE 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21

Pursuant to Federal Rule of Appellate Procedure 26.1, amici

curiae Campaign Legal Center and Democracy 21 make the following 

disclosure regarding their corporate status:

The Campaign Legal Center (CLC) is a nonprofit, nonpartisan 

corporation working in the areas of campaign finance reform, voting 

rights and media law. The CLC has no parent corporation and no 

publicly held corporation has any form of ownership interest in the 

CLC.

Democracy 21 is a nonprofit, nonpartisan corporation dedicated to 

making democracy work for all Americans, including promoting 

campaign finance reform and other political reforms to accomplish these 

goals. Democracy 21 has no parent corporation and no publicly held 

corporation has any form of ownership interest in Democracy 21.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED 

CASES .......................................................................................................ii

CORPORATE DISCLOSURE STATEMENT......................................... iii

TABLE OF AUTHORITIES....................................................................ivi

GLOSSARY OF ABBREVIATIONS .................................................... xiiii

STATEMENT OF INTEREST ..................................................................1

INTRODUCTION & SUMMARY OF ARGUMENT.................................1

ARGUMENT .............................................................................................4

I. Courts Should Defer to Legislative Judgments About the Structure 

and Timing of Otherwise Constitutional Campaign Contribution 

Limits......................................................................................................4

A. The determination of a per-election, rather than a per-electioncycle, limit on campaign contributions is a question of electoral 

mechanics best left to the legislature..................................................5

1. Deference to the legislature is integral to contribution limit 

analysis..............................................................................................5

2. Deference is particularly appropriate when reviewing the 

structure of a contribution limit........................................................9

B. The per-election structure of FECA’s contribution limits 

respects state election processes and ensures that all candidates 

receive sufficient funds to run their campaigns................................12

II. Invalidating FECA’s Structure Would Stifle a Diversity of State 

Approaches to Campaign Finance Regulation.....................................17

III. FECA’s Per-Election Structure Helps Combat Corruption and Its 

Appearance. ..........................................................................................21

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CONCLUSION ........................................................................................24

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TABLE OF AUTHORITIES

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

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................8

Arizona v. Inter Tribal Council of Arizona, Inc., 

 133 S. Ct. 2247 (2013) ...........................................................................14

*Buckley v. Valeo, 

 424 U.S. 1 (1976) (per curiam)........................ 4, 5, 6, 7, 8, 10, 16, 17, 24

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (per curiam)..................5

Burdick v. Takushi, 504 U.S. 428 (1992)............................................8, 10

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981)............................................6

Citizens United v. FEC, 558 U.S. 310 (2010)....................................12, 17

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

Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214 (1989) ................8

FEC v. Beaumont, 539 U.S. 146 (2003) ................................................6, 7

FEC v. Colo. Republican Fed. Campaign Comm., 

 533 U.S. 431 (2001) ...............................................................................10

FEC v. Nat’l Conservative Pol. Action Comm., 

 470 U.S. 480 (1985) .................................................................................6

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982).........................6

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998) ........................................17

Hill v. Colorado, 530 U.S. 703 (2000) .....................................................17

John Doe No. 1 v. Reed, 561 U.S. 186 (2010)..........................................11

Lair v. Motl, No. CV 12-12-H-CCL, 2016 WL 2894861 

 (D. Mont. May 17, 2016), appeal filed, No. 16-35424 (May 20, 2016)..19

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*McConnell v. FEC, 540 U.S. 93 (2003).................................. 1, 2, 6, 7, 16

McCutcheon v. FEC, 134 S. Ct. 1434 (2014)......................... 1, 6, 7, 17, 24

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000).........................6, 23

*Randall v. Sorrell, 548 U.S. 230 (2006) .................. 3, 6, 8, 12, 13, 15, 16

Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) .............9

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997)..............................8

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (en banc)...........................17

Ward v. Rock Against Racism, 491 U.S. 781 (1989)...............................17

Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) .............. 16, 21, 24

STATUTES

52 U.S.C. § 30101 ....................................................................................13

52 U.S.C. § 30116 ................................................................................9, 14

10 Ill. Comp. Stat. 5/9-1.9 .......................................................................18

10 Ill. Comp. Stat. 5/9-8.5 .......................................................................18

17 R.I. Gen. Laws § 17-25-10.1 ...............................................................18

Alaska Stat. § 15.13.070..........................................................................18

Ariz. Rev. Stat. § 16-905..........................................................................18

Ark. Code Ann. § 7-6-201 ........................................................................18

Ark. Code Ann. § 7-6-203 ........................................................................18

Austin, Tex., Charter, art. III, § 8...........................................................20

Cal. Gov’t Code § 82022...........................................................................18

Cal. Gov't Code § 85301...........................................................................18

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Colo. Const. art. XXVIII, § 3 ...................................................................18

Conn. Gen. Stat. § 9-611 .........................................................................18

Del. Code Ann. tit. 15, § 8002 .................................................................18

Del. Code Ann. tit. 15, § 8010 .................................................................18

Denver, Colo., Code of Ordinances, ch. 15, art. III, § 15-37...................20

Fla. Stat. § 106.08 ...................................................................................18

Ga. Code Ann. § 21-5-41..........................................................................18

Haw. Rev. Stat. § 11-302.........................................................................18

Haw. Rev. Stat. § 11-357.........................................................................18

Houston, Tex., Code of Ordinances, ch. 18, art. IV, § 18-31...................20

Houston, Tex., Code of Ordinances, ch. 18, art. IV, § 18-38...................20

Idaho Code Ann. § 67-6610A...................................................................18

Kan. Stat. Ann. § 25-4153.......................................................................18

Ky. Rev. Stat. Ann. § 121.015 .................................................................18

Ky. Rev. Stat. Ann. § 121.150 .................................................................18

L.A., Cal., Charter vol. I, art., IV, § 470 .................................................20

La. Stat. Ann. § 18:1505.2.......................................................................18

Mass. Gen. Laws ch. 54, § 140 ................................................................13

Mass. Gen. Laws ch. 55, § 7A............................................................18, 19

Md. Code Ann., Elec. Law § 1-101 ..........................................................18

Md. Code Ann., Elec. Law § 13-226 ........................................................18

Me. Rev. Stat. tit. 21-A, § 1001 ...............................................................18

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Me. Rev. Stat. tit. 21-A, § 1015 ...............................................................18

Mich. Comp. Laws § 169.205.............................................................18, 19

Mich. Comp. Laws § 169.252...................................................................18

Minn. Stat. § 10A.01 subd. 16...........................................................18, 19

Minn. Stat. § 10A.27 subd. 1...................................................................18

Mont. Code Ann. § 13-37-216..................................................................18

N.C. Gen. Stat. § 163-278.13...................................................................18

N.H. Rev. Stat. Ann. § 664:4...................................................................18

N.J. Stat. Ann. § 19:44A-11.3..................................................................18

N.J. Stat. Ann. § 19:44A-3 ......................................................................18

N.J. Stat. Ann. § 19:44A-4 ......................................................................18

N.M. Stat. Ann. § 1-19-34.7.....................................................................18

N.Y. Elec. Law § 14-114 ..........................................................................18

Nev. Rev. Stat. § 294A.100......................................................................18

New York, N.Y. Admin. Code tit. III, ch. 7, § 3-703 ...............................20

New York, N.Y. Admin. Code tit. III, ch. 7, § 3-719 ...............................20

Ohio Rev. Code § 3517.102......................................................................18

Okla. Stat. tit. 74, ch. 62, app. 1, Rule 2.37............................................18

S.C. Code Ann. § 8-13-1300.....................................................................18

S.C. Code Ann. § 8-13-1314.....................................................................18

S.D. Codified Laws § 12-27-7 ..................................................................18

S.D. Codified Laws § 12-27-8 ..................................................................18

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S.F., Cal., Campaign and Governmental Conduct Code, art. I, ch. 1, § 

1.104......................................................................................................20

S.F., Cal., Campaign and Governmental Conduct Code, art. I, ch. 1, § 

1.114......................................................................................................20

Tenn. Code Ann. § 2-10-102 ....................................................................18

Tenn. Code Ann. § 2-10-302 ....................................................................18

Tex. Elec. Code Ann. § 172.004...............................................................13

Vt. Stat. Ann. tit. 17, § 2941 ...................................................................18

W. Va. Code Ann. § 3-8-12.......................................................................18

Wash. Rev. Code Ann. § 42.17A.405.......................................................18

Wis. Stat. § 11.1101.................................................................................18

Wis. Stat. § 11.1103.................................................................................18

Wyo. Stat. Ann. § 22-25-102....................................................................18

OTHER AUTHORITIES

Cal. Sec’y of State, Statement of Vote: June 3, 2014, Statewide Direct 

Primary Election (July 11, 2014), 

http://elections.cdn.sos.ca.gov/sov/2014-primary/pdf/2014-completesov.pdf...................................................................................................11

Mont. Comm’r of Pol. Practices, Amended Office Management Policy 2.4

(May 26, 2016), http://leg.mt.gov/content/Committees/Interim/2015-

2016/State-Administration-and-Veterans-Affairs/Meetings/June2016/Motl-contribution%20limit%20policy%202.pdf...........................19

Nat’l Conf. of State Legislatures, Primary Runoffs, 

http://www.ncsl.org/research/elections-and-campaigns/primaryrunoffs.aspx (last updated May 12, 2014)......................................20, 21

REGULATIONS

11 C.F.R. § 110.1 .....................................................................................23

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11 C.F.R. § 110.3 .....................................................................................23

LEGISLATIVE MATERIALS

117 Cong. Rec. 43,410 (1971) ..................................................................14

120 Cong. Rec. 35,130 (1974) ..................................................................15

120 Cong. Rec. 35,137 (1974) ..................................................................16

Act of July 19, 1940, Pub. L. No. 76-753, § 13(a), 54 Stat. 767, 770 ......14

FECA Amendments of 1974, Pub. L. No. 93-443, § 101(a), 

 88 Stat. 1263, 1263................................................................................14

S. Conf. Rep. No. 93-1237 (1974) ............................................................14

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GLOSSARY OF ABBREVIATIONS

FEC Federal Election Commission

FECA Federal Election Campaign Act

JA Joint Appendix

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STATEMENT OF INTEREST1

Amici curiae Campaign Legal Center and Democracy 21 are

nonprofit organizations that work to strengthen the laws governing 

campaign finance. Amici have participated in several of the Supreme 

Court cases underlying the claims herein, including McConnell v. FEC, 

540 U.S. 93 (2003), and McCutcheon v. FEC, 134 S. Ct. 1434 (2014). 

Amici have a demonstrated interest in the issues raised here.

All parties have consented to amici’s participation in this case.

INTRODUCTION & SUMMARY OF ARGUMENT

Plaintiffs Holmes and Jost characterize this case as a narrow, asapplied challenge to the so-called “bifurcation” of federal campaign

contribution limits. Pls.’ Opening Br. (“Holmes Br.”) 9, 26. According to 

plaintiffs, they are concerned about only when individuals can donate to 

their preferred candidates, not how much they can give. Id. at 12-13.

But make no mistake: this suit is designed to chip away at the 

Federal Election Campaign Act’s (“FECA’s”) contribution limits

themselves. FECA limits individuals to $2,700 in donations to a federal 

1 No party or party’s counsel authored this brief in whole or in part, 

and no person, other than the amici curiae, contributed money intended 

to fund the preparation or submission of this brief.

1

 

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candidate during a general election.2 Plaintiffs, however, seek to give 

$5,400. As the district court recognized, “Plaintiffs are seeking simply to 

contribute more than Congress has authorized.” JA 174. And the 

argument that plaintiffs assert to achieve this goal is as damaging as 

the actual relief they request: they seek to eliminate the deference

traditionally accorded Congress in the enactment of contribution limits, 

so that even the minutest regulatory details would be subject to probing 

judicial review. Holmes Br. 16. In other words, they ask this Court to 

replace Congress’s policy choices with their own.

Plaintiffs’ claim, however, runs headlong into established 

precedent. Deference to legislative decisions is a well-established part of 

campaign finance doctrine. See, e.g., McConnell, 540 U.S. at 136-37; see 

also infra Section I.A.1 (collecting cases). Contribution limits protect the 

government’s vital interest in combatting corruption but impose only 

limited burdens on First Amendment rights, and any system of 

contribution limits demands empirical judgments that are best left to 

the legislative branch. Therefore, unless they are unreasonable or 

2 When this case was filed, the relevant base limit was $2,600 per 

election. It has since been adjusted for inflation, and is now $2,700 per 

election. JA 145.

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extreme, the details of a contribution scheme are the legislature’s 

prerogative. See Randall v. Sorrell, 548 U.S. 230, 248 (2006) (plurality 

opinion).

This is even truer with regard to the structuring of a contribution

limit than it is to its dollar amount. Congress chose FECA’s per-election 

structure out of respect for the states’ differing election processes, and

the desire to balance effective contribution limits with candidates’ need 

for adequate resources to run competitive campaigns. These interests 

are more than sufficient to justify deferring to Congress’s considered 

choice. 

Moreover, a survey of state laws confirms both the ubiquity of this

per-election contribution structure in the states and the rarity of the

election-cycle structure that plaintiffs demand here. Adopting the 

plaintiffs’ preferred regulatory approach to the structure of contribution

limits would have nationwide impact, and could cause widespread 

upheaval in state campaign finance laws.

Finally, plaintiffs devote much of their brief to the idea that the 

per-election structure serves no anti-corruption purpose. Even if the 

per-election structure of FECA’s contribution restrictions did not 

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receive deference, however, FECA’s structure is closely drawn to 

prevent quid pro quo corruption and its appearance. Plaintiffs assume 

that one can simply add up FECA’s per-election limits to reach larger, 

election-cycle limits without giving rise to any new concerns about 

corruption or the appearance of corruption. By that logic, donors could 

just as easily add up contribution limits across different elections in the 

same cycle—primary, runoff, and general elections—or even across 

different election cycles in order to give even larger lump-sum amounts. 

This creates a real risk of corruption—and certainly the appearance of 

corruption—which FECA’s per-election structure is closely drawn to 

prevent. Buckley v. Valeo, 424 U.S. 1, 30 (1976) (per curiam).

For these reasons, amici urge this court to find in favor of the FEC 

on the certified question raised in this en banc proceeding.

ARGUMENT

I. Courts Should Defer to Legislative Judgments About the

Structure and Timing of Otherwise Constitutional 

Campaign Contribution Limits.

Since Buckley, the Supreme Court has recognized that the 

legislature should determine the details of contribution regulation. “[I]f 

it is satisfied that some limit on contributions is necessary, a court has 

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no scalpel to probe” the legislature’s choice of dollar amount. Buckley, 

424 U.S. at 30. The same principle applies to judgments about the 

structuring of contribution limits. Indeed, this Court has already upheld 

FECA’s contribution limits while paying explicit attention to its perelection structure. Buckley v. Valeo, 519 F.2d 821, 851-52 (D.C. Cir. 

1975) (per curiam) (“[T]he statutory contribution limit of $1,000 per 

candidate per election (with primary and general elections counted as 

two separate elections) serves a compelling governmental interest.” 

(footnotes omitted) (emphasis added)), aff’d in part, rev’d in part, 424 

U.S. 1. These precedents—and the deference typically paid the 

legislature in this area—foreclose the plaintiffs’ arguments here. 

A. The determination of a per-election, rather than a 

per-election-cycle, limit on campaign contributions is 

a question of electoral mechanics best left to the 

legislature.

1. Deference to the legislature is integral to contribution 

limit analysis.

While expenditure limits are subject to strict scrutiny, 

contribution limits are subjected to a lesser burden. A contribution limit 

will be “sustained if the State demonstrates a sufficiently important 

interest and employs means closely drawn to avoid unnecessary 

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abridgement of associational freedoms.” Buckley, 424 U.S. at 25. Under 

“closely drawn” scrutiny, a legislature is granted discretion to 

determine the best solution to the problem it has identified. A law must 

be not “perfect, but reasonable”; the legislature must adopt, not “the 

single best disposition[,] but one whose scope is ‘in proportion to the 

interest served.’” McCutcheon, 134 S. Ct. at 1456 (citation omitted).

Plaintiffs acknowledge that contribution limits are subject to 

closely drawn, rather than strict, scrutiny. Holmes Br. 11. Plaintiffs 

argue, however, that this Court should not defer to Congress’s judgment 

regarding the proper structure of FECA’s contribution limits. Id. at 12 

n.8, 18. They are wrong. For four decades, the Supreme Court has 

consistently counseled deference to legislative judgments when

regulating political contributions. See Davis v. FEC, 554 U.S. 724, 737 

(2008); Randall, 548 U.S. at 248; McConnell, 540 U.S. at 136-37; FEC v. 

Beaumont, 539 U.S. 146, 155 (2003); Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 391, 397 (2000); id. at 402-03 (Breyer, J., concurring);

FEC v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480, 500 (1985); 

FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 209-10 (1982); Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 201 (1981); Buckley, 424 U.S. at 30.

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This is so for at least three reasons. First, deference is appropriate

because of “the limited burdens [contribution restrictions] impose on 

First Amendment freedoms.” McConnell, 540 U.S. at 136. Contributions 

act only as “a general expression of support for the candidate and his 

views,” and “[t]he quantity of communication by the contributor does 

not increase perceptibly with the size of his contribution, since the 

expression rests solely on the undifferentiated, symbolic act of 

contributing.” Buckley, 424 U.S. at 21. This is why, “[g]oing back to 

Buckley,” “restrictions on political contributions have been . . . subject to 

relatively complaisant review under the First Amendment.” Beaumont, 

539 U.S. at 161.

Second, deference is necessary because of “the importance of the 

interests that underlie contribution limits.” McConnell, 540 U.S. at 136.

Corruption and the appearance of corruption are toxic to our system of 

self-government. Regulations on political contributions help deter these 

threats, and are thereby “designed to protect the integrity of the 

political process.” Id. at 137. As the Supreme Court has continually 

affirmed, this is a governmental interest of the highest order. See, e.g., 

McCutcheon, 134 S. Ct. at 1450 (acknowledging “the compelling nature 

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of the ‘collective’ interest in preventing corruption in the electoral 

process”).3

Third, deference recognizes that the legislature “is far better 

equipped than the judiciary” to make decisions “concerning regulatory 

schemes of inherent complexity.” Turner Broad. Sys., Inc. v. FCC, 520 

U.S. 180, 195-96 (1997). This is doubly true in regard to campaign 

finance law. “[L]egislators have ‘particular expertise’ in matters related 

to the costs and nature of running for office.” Randall, 548 U.S. at 248.

The judiciary, by contrast, “has no scalpel to probe” whether a $5,400 

contribution limit is better than a $2,700 one, or whether an electioncycle contribution structure is superior to a per-election structure. 

Buckley, 424 U.S. at 30. Therefore, when it comes to the details of 

3 The Supreme Court has also frequently recognized that the 

legislature has a particularly compelling constitutional role in the 

context of elections. Burdick v. Takushi, 504 U.S. 428, 433 (1992)

(“Common sense, as well as constitutional law, compels the conclusion 

that government must play an active role in structuring elections . . . .”). 

Congress’s “important regulatory interests” here give it the discretion to 

choose between “reasonable, nondiscriminatory restrictions” on 

contributions. Anderson v. Celebrezze, 460 U.S. 780, 788 & n.9 (1983); 

see also Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 

(1989) (“A State indisputably has a compelling interest in preserving 

the integrity of its election process.”); Buckley, 424 U.S. at 58 

(contribution limits “serve the basic governmental interest in 

safeguarding the integrity of the electoral process”).

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designing contribution limits––like dollar amount or timing––deference 

is the general rule.

2. Deference is particularly appropriate when reviewing 

the structure of a contribution limit.

Deference is even more appropriate here because plaintiffs do not 

challenge FECA’s contribution ceilings, Holmes Br. 6, but instead 

attack only how the ceilings apply in an election cycle. Id. Such 

structural regulations constitute “an even more ‘marginal restriction 

upon the contributor’s ability to engage in free communication’ than a 

dollar cap.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1122 (9th 

Cir. 2011).

Plaintiffs’ constitutional injury is similarly minor. FECA allowed 

plaintiffs to donate $5,400 to their preferred candidates, so long as they 

chose to associate with those candidates in two separate elections: the

primary and the general. 52 U.S.C. § 30116(a)(1)(A), -(a)(6). By giving 

the maximum $2,700 donation, they were able “to fully associate with 

[their] party’s ultimate nominee[s]” in the general election. Holmes Br. 

7. It was only the plaintiffs’ choice not to associate with these

candidates in the primary that prevented them from giving more in the 

same cycle. 

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Plaintiffs’ only argument, therefore, is that “FECA prevents 

[them] from association with candidates in their preferred manner and 

for their intended purpose.” Id. at 25 (emphases added). But Buckley

already considered and rejected this line of reasoning. 424 U.S. at 22, 

28-29. And the Constitution gives “little weight to the interest [a]

candidate and his supporters may have in making a late rather than an 

early decision to” associate. Burdick v. Takushi, 504 U.S. 428, 437

(1992) (internal quotation marks omitted). Thus, any burden imposed 

by a per-election structure, as opposed to an election-cycle structure, is 

marginal. Id. When two enforcement options have such similar First 

Amendment implications, “Congress is entitled to its choice.” FEC v. 

Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 465 (2001).

Indeed, the technical, detail-oriented nature of plaintiffs’ attack 

underscores the appropriateness of deferring to Congress. For instance, 

plaintiffs have asserted, throughout this litigation, that their challenge 

applies only to situations in which “a candidate who faces a primary 

challenge competes in the general election against a candidate who ran 

unopposed or virtually unopposed during the primary.” JA 186-87

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(emphasis added); see also JA 160.4 Deciding which candidates are 

“virtually unopposed” in the primary is a difficult line-drawing exercise. 

Would the definition include those opposed only by write-in candidates? 

Those who spent below a certain threshold, or whose opponents raised 

less than a certain threshold? Those whose opponents received less than

five percent of the vote? Fifteen percent? Plaintiffs claimed that Scott 

Peters, a California Democratic incumbent, was virtually unopposed in 

the 2014 primary, and Plaintiff Holmes donated to Peters’s Republican 

opponent in the general election. JA 71-72, 157, 160 n.4. But, in fact,

Peters won only 42 percent of the vote in a four-way blanket primary. 

Cal. Sec’y of State, Statement of Vote: June 3, 2014, Statewide Direct 

Primary Election 76 (July 11, 2014), http://elections.cdn.sos.ca.gov/

sov/2014-primary/pdf/2014-complete-sov.pdf. As difficult as Congress 

and the FEC may find it would be to draw this line, courts would find it

almost impossible without overstepping their judicial role.

4 Plaintiffs have recharacterized the scope of their challenge before 

this Court. They now challenge FECA’s application to all “donors who 

wish to give . . . $5,200 contribution[s] to party nominees once they have 

won their primary elections.” Holmes Br. 28. This broad attack would 

require relief beyond plaintiffs’ particular circumstances. Plaintiffs 

“must therefore satisfy [the] standards for a facial challenge to the 

extent of that reach.” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). 

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Plaintiffs advocate for “the drawing of fine distinctions that, in the 

end, would themselves be questionable.” Citizens United v. FEC, 558 

U.S. 310, 327 (2010). This simply underscores that the details of 

formulating contribution restrictions are best left to Congress. As the 

Supreme Court has recognized, the judiciary “cannot determine with 

any degree of exactitude the precise restriction necessary to carry out 

[a] statute’s legitimate objectives.” Randall, 548 U.S. at 248. A court 

need not apply rational basis review to recognize that politicians might 

have a particular expertise in matters of political fundraising. 

Determining the timing of contribution limits is a quintessential detail 

of regulatory policy, and remains the prerogative of the legislative 

branch.

B. The per-election structure of FECA’s contribution 

limits respects state election processes and ensures 

that all candidates receive sufficient funds to run 

their campaigns.

Plaintiffs make the sweeping claim that FECA’s per-election 

structure does not serve any “valid, let alone substantial, governmental 

interest.” Holmes Br. 17 n.10. This is not so. Congress deliberately 

chose per-election contribution limits over multiple alternative 

structures, and for good reasons: to tailor the law to accommodate the 

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different election processes prescribed by the states, and to ensure that 

candidates have sufficient resources to run competitive campaigns in all 

variety of elections.

States vary in the procedures they impose for federal elections. 

Some require runoffs for candidates who do not receive a sufficient 

share of the vote, see, e.g., Tex. Elec. Code Ann. § 172.004; some require 

special elections in addition to the normal primary and general 

elections when there is a vacancy, see, e.g., Mass. Gen. Laws ch. 54, 

§ 140. Congress structured FECA to respect these differences, by 

creating separate contribution limits for primary, general, runoff, and 

special elections, as well as for caucuses and nominating conventions. 

52 U.S.C. § 30101(1). This per-election structure also ensures that 

candidates running in extra elections have the money to compete, 

without having to raise the contribution limits for other candidates.

As FECA’s legislative history confirms, Congress made a proper 

“empirical judgment” in choosing per-election contribution limits.

Randall, 548 U.S. at 248. In the early decades of federal campaign 

finance regulation, Congress imposed annual limits of $5,000 on 

individual contributions to general-election campaigns (the law did not 

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cover primaries). See Act of July 19, 1940, Pub. L. No. 76-753, § 13(a), 

54 Stat. 767, 770; 117 Cong. Rec. 43,410 (1971) (statement of Rep. 

Abzug). Contributions to political committees, which are not legally tied 

to individual candidates or election cycles, still follow this annual 

structure. 52 U.S.C. § 30116(a)(1)-(2). 

But, when drafting the 1974 FECA amendments, Congress 

decided to move away from this structure for individual contributions to 

candidates. See FECA Amendments of 1974, Pub. L. No. 93-443, § 

101(a), 88 Stat. 1263, 1263 (codified as amended at 52 U.S.C. § 

30116(a)(1)(A), -(a)(6)).5 Because the states have the primary “duty . . . 

to prescribe the time, place, and manner of electing Representatives 

and Senators,” Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. 

Ct. 2247, 2253 (2013), candidates from different states have to compete 

in varying numbers of elections per cycle. Congress chose per-election 

5 Initially, the Senate structured the limits as plaintiffs would 

prefer. Individuals would have been limited to $3,000 in contributions 

to a candidate over the course of an entire campaign, with “campaign” 

defined “to include all primary, primary runoff, and general election 

campaigns related to a specific general election.” S. Conf. Rep. No. 93-

1237, at 50 (1974). However, the House chose a per-election structure, 

setting up $1,000 limits that would apply “separately to each election.” 

Id. at 50-51. At conference, the conferees considered these election-cycle 

and per-election options, and adopted the House’s approach. Id. at 52.

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limits in order to incorporate runoffs and special elections, and to close 

the linguistic loophole that had left primaries out of the prior law.6 This 

was a considered choice about one aspect of a larger regulatory 

scheme—a choice which “the legislature is better equipped to make” 

than is the judiciary. Randall, 548 U.S. at 248.

Moreover, in choosing to adopt per-election limits, Congress 

ensured that contributors can associate with candidates—and that 

candidates can receive enough money to mount their campaigns—in 

each election. As one House conferee put it when describing the bill’s 

similarly structured expenditure limitations: “Without allowance for 

6 One of the House conferees explained the reasons behind the perelection structure soon before the House voted to approve the final bill. 

See 120 Cong. Rec. 35,137 (1974) (statement of Rep. Fraser) (“Under the 

1971 law, considerable confusion was created by the use of the phrase 

‘nomination for election, or election.’ The courts, candidates and 

administrators and enforcers of the law frequently made different 

interpretations of its meaning. Under the new law, such confusion 

should be avoided. . . . In the case of contribution limitations, an 

individual can contribute $1,000 for the primary campaign and $1,000 

for the general election. If there is a primary runoff, an individual can 

contribute an additional $1,000. If, as may be the case in the State of 

Georgia, there is a runoff in the general election, an individual can 

contribute another $1,000.”); see also 120 Cong. Rec. 35,130 (1974)

(statement of Rep. Hays) (“Before somebody asks me what this ‘per 

election’ means, that means a primary and a general, and if there are 

States that have a law and one is engaged in a runoff, it means a 

runoff.”).

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these additional amounts, a candidate might find himself unable to 

spend anything in a primary or general election runoff. This would 

make a mockery of the election process.” 120 Cong. Rec. 35,137 (1974)

(statement of Rep. Fraser). FECA’s per-election structure thus balances

“the importance of the interests that underlie contribution limits” with 

“the limited burdens they impose on First Amendment freedoms.” 

McConnell, 540 U.S. at 136.

In sum, Congress’s decision to use a per-election structure was not 

an attempt to restrict speech or association, but, on the contrary, 

“reflect[s] [Congress’s] effort to respect the First Amendment interests 

of candidates and their contributors.” Williams-Yulee v. Florida Bar, 

135 S. Ct. 1656, 1669 (2015). By choosing a per-election structure, 

Congress ensured that it did not “prevent candidates from ‘amassing 

the resources necessary for effective [campaign] advocacy.’” Randall, 

548 U.S. at 248. This Court should defer to “Congress’[s] ability to 

weigh competing constitutional interests in an area in which it enjoys 

particular expertise.” McConnell, 540 U.S. at 137.7

7 FECA’s per-election structure can also be upheld as a time, place, 

and manner restriction on speech and association. Buckley, 424 U.S. at 

18 (noting that “the government may adopt reasonable time, place, and 

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II. Invalidating FECA’s Structure Would Stifle a Diversity of 

State Approaches to Campaign Finance Regulation.

Plaintiffs’ attack on FECA threatens not only the administration 

of the federal contribution limits. It also has the potential to upend 

state campaign finance regimes. As this Court has recognized, when 

passing on federal contribution restrictions, “[t]he experience of states 

with and without similar laws is also relevant.” Wagner v. FEC, 793 

F.3d 1, 14 (D.C. Cir. 2015) (en banc). See also McCutcheon, 134 S. Ct. at

manner regulations, which do not discriminate among speakers or 

ideas, in order to further an important governmental interest unrelated 

to the restriction of communication”). Buckley found that FECA’s 

contribution and expenditure limits were not themselves time, place, 

and manner regulations, because they “impose direct quantity 

restrictions on political communication and association . . . in addition 

to any reasonable time, place, and manner regulations otherwise 

imposed.” Id. (emphasis added). But plaintiffs concede that they “do not 

challenge the specific dollar amount Congress has chosen,” but “only the 

manner in which” the limits are “split.” Holmes Br. 12-13 (emphasis 

added). Stripped of the specific dollar limitations that plaintiffs accept 

as constitutional, the decision whether to use a per-election or a perelection-cycle structure is “just . . . a matter of timing.” Gable v. Patton, 

142 F.3d 940, 953 (6th Cir. 1998). And a reasonable time, place, or 

manner regulation is “perfectly valid” unless it “results in removing a 

subject or viewpoint from effective discourse (or otherwise fails to 

advance a significant public interest in a way narrowly fitted to that 

objective).” Hill v. Colorado, 530 U.S. 703, 736 (2000) (Souter, J., 

concurring) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 

(1989)).

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1451 n.7; Citizens United, 558 U.S. at 357. And only a handful of states

employ the contribution structure that plaintiffs seek here.

States use a variety of timing mechanisms in their campaign 

finance laws, in keeping with their legitimate power to regulate the 

electoral process itself. Thirty-eight states impose contribution limits

for state elections.8 Of these, the vast majority––twenty-seven––have 

per-election limits, like those that FECA imposes at the federal level.9

8 Alaska Stat. § 15.13.070; Ariz. Rev. Stat. § 16-905(A)-(B); Ark. 

Code Ann. §§ 7-6-201(7), -203; Cal. Gov’t Code §§ 82022, 85301; Colo. 

Const. art. XXVIII, § 3(1); Conn. Gen. Stat. § 9-611; Del. Code Ann. tit. 

15, §§ 8002(11)(a), 8010(a); Fla. Stat. § 106.08(1); Ga. Code Ann. § 21-5-

41(a)-(b); Haw. Rev. Stat. §§ 11-302 (defining “election”), -357; Idaho 

Code Ann. § 67-6610A(1); 10 Ill. Comp. Stat. 5/9-1.9(1)-(2), 5/9-8.5(b); 

Kan. Stat. Ann. § 25-4153(a); Ky. Rev. Stat. Ann. §§ 121.015(2), -.150(6); 

La. Stat. Ann. § 18:1505.2(H)(1)(a), (3)(a); Me. Rev. Stat. tit. 21-A, §§ 

1001(2), 1015(1); Md. Code Ann., Elec. Law §§ 1-101(w), 13-226(b); 

Mass. Gen. Laws ch. 55, § 7A(a)(1); Mich. Comp. Laws §§ 169.205(3), -

.252(1); Minn. Stat. §§ 10A.01 subd. 16, 10A.27 subd. 1(a); Mont. Code 

Ann. § 13-37-216(1), (5); Nev. Rev. Stat. § 294A.100; N.H. Rev. Stat. 

Ann. § 664:4; N.J. Stat. Ann. §§ 19:44A-3(e), -4, -11.3(a); N.M. Stat. 

Ann. § 1-19-34.7(A)(1); N.Y. Elec. Law § 14-114(1); N.C. Gen. Stat. § 

163-278.13(a), (d); Ohio Rev. Code § 3517.102(B)(1); Okla. Stat. tit. 74, 

ch. 62, app. 1, Rule 2.37; 17 R.I. Gen. Laws § 17-25-10.1(a); S.C. Code 

Ann. §§ 8-13-1300(10), -1314(A)(1); S.D. Codified Laws §§ 12-27-7 to -8; 

Tenn. Code Ann. §§ 2-10-102(5), -302(a); Vt. Stat. Ann. tit. 17, § 

2941(a)(1)-(3), (c); Wash. Rev. Code Ann. § 42.17A.405(2); W. Va. Code 

Ann. § 3-8-12(f)-(g); Wis. Stat. §§ 11.1101(1), -.1103; Wyo. Stat. Ann. § 

22-25-102(c), (j).

9 These states are Arkansas, California, Colorado, Connecticut, 

Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Kentucky, 

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Five use annual or biennial limits.10 Only six states have the perelection-cycle limits for which plaintiffs advocate.11 Notably, even some 

of the states that do not use per-election limits provide for additional 

contribution periods to accommodate special elections. See, e.g., Mass. 

Gen. Laws ch. 55, § 7A(a)(1); Mich. Comp. Laws § 169.205(3); Minn. 

Stat. § 10A.01 subd. 16.

Municipalities likewise employ different methods of structuring 

contribution limits. Los Angeles and Austin, for example, use perelection limits that parallel FECA’s. See Austin, Tex., Charter, art. III, § 

Louisiana, Maine, Montana, Nevada, New Hampshire, New Jersey, 

New Mexico, New York, North Carolina, Ohio, Oklahoma, South 

Carolina, Tennessee, Washington, West Virginia, and Wyoming. See 

supra note 8. Montana’s per-election limits have been the subject of 

ongoing litigation, although their “per-election” structure is not at issue. 

See Lair v. Motl, No. CV 12-12-H-CCL, 2016 WL 2894861 (D. Mont. 

May 17, 2016), appeal docketed, No. 16-35424 (9th Cir. May 20, 2016). 

Montana has temporarily reinstated its previous limits pending appeal. 

Mont. Comm’r of Pol. Practices, Amended Office Management Policy 2.4

(May 26, 2016), http://leg.mt.gov/content/Committees/Interim/2015-

2016/State-Administration-and-Veterans-Affairs/Meetings/June2016/Motl-contribution%20limit%20policy%202.pdf.

10 Alaska, Massachusetts, Rhode Island, and South Dakota use 

annual limits. See supra note 8. Minnesota divides its campaign finance 

administration into two-year election “segments,” with higher 

contribution limits for segments that include an election and lower 

limits for segments without one. Id.

11 These states are Arizona, Hawaii, Maryland, Michigan, Vermont, 

and Wisconsin. See supra note 8.

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8(A); L.A., Cal., Charter vol. I, art., IV, § 470(b)(3), (c)(3)-(4). Denver and 

San Francisco, meanwhile, employ campaign cycle-based limits. See

Denver, Colo., Code of Ordinances, ch. 15, art. III, § 15-37(a); S.F., Cal.,

Campaign and Governmental Conduct Code, art. I, ch. 1, §§ 1.104, 

1.114(a). New York City employs a hybrid system in which limits are 

set per election cycle but candidates can accept an additional amount,

equal to one-half the election-cycle limit, if they face a runoff or special 

election. New York, N.Y. Admin. Code tit. III, ch. 7, §§ 3-703(f), 3-

719(2)(b). Houston sets its contribution limits using biennial periods. 

Houston, Tex., Code of Ordinances, ch. 18, art. IV, §§ 18-31(c)(1), 18-

38(a).

As this variety makes clear, state legislatures and city councils 

have chosen those methods of campaign finance administration that 

they determine best fit their local situations. For instance, nearly all of 

the states that provide for primary runoffs use per-election limits (when 

they have limits at all).12 “These considered judgments deserve our 

12 For a list of states with primary runoff provisions, see Nat’l Conf. of 

State Legislatures, Primary Runoffs, http://www.ncsl.org/research/

elections-and-campaigns/primary-runoffs.aspx (last updated May 12, 

2014). Arkansas, Georgia, Louisiana, North Carolina, Oklahoma, and 

South Carolina employ per-election limits, while Alabama, Texas, and 

20

 

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respect, especially because they reflect sensitive choices by States in an 

area central to their own governance . . . .” Williams-Yulee, 135 S. Ct. at

1671. But the logic of plaintiffs’ argument would allow contributors in 

state elections to calculate an artificial “election cycle” limit and donate 

up to that amount at any time during the cycle. This would essentially 

invalidate the contribution limits of every state––except for those of the 

six states currently employing a single contribution limit for the entire 

election cycle.

III. FECA’s Per-Election Structure Helps Combat Corruption

and Its Appearance.

Plaintiffs contend that FECA’s per-election structure is 

unconstitutional because it does not serve an anti-corruption purpose 

distinct from that of the limits themselves. Holmes Br. 24. As explained 

above, Congress need not have a separate anti-corruption rationale for 

each and every structural detail of a campaign finance law, and other 

substantial interests justify the per-election structure. But plaintiffs 

lose even when playing their own game. In fact, FECA’s per-election 

Mississippi have no limits. See supra notes 8-9. The exceptions are 

South Dakota and Vermont, both of which have annual limits, see supra 

note 10, and utilize runoffs for state elections only in quite limited 

circumstances, see Primary Runoffs, supra.

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structure serves an important anti-corruption function. It ensures that 

individuals cannot contribute large sums in a single election, thereby 

preventing quid pro quo corruption and its appearance.

Plaintiffs claim that Congress determined that a $5,400 donation

cannot corrupt. Holmes Br. 20. As the district court explained, however, 

Congress made no such determination. JA 173. Rather, Congress 

concluded that the inflation-adjusted base limit of $2,700 in each 

election would both deter corruption and its appearance and ensure 

that candidates had sufficient resources to compete. Id.

If plaintiffs were correct in their reasoning, however, then 

individuals would be able to donate far more than Congress has 

authorized. Even by plaintiffs’ own logic, $5,400 is not the actual

maximum for an election cycle, because it fails to factor in those with 

runoffs or special elections. As an example, take the 2014 U.S. Senate 

race in Mississippi. In that race, Senator Thad Cochran did not reach 

the requisite majority vote to win the primary outright. He therefore 

faced a primary runoff against opponent Chris McDaniel. See JA 154.

What if an individual had wished to avoid taking sides in the primary 

and donate only to the eventual Republican nominee? According to 

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plaintiffs, she could simply have waited until the general election and 

donated $8,100 at once: $2,700 each for the primary, the runoff, and the 

general.13

Such large, lump-sum donations are much likelier to give rise to 

corruption, or certainly an appearance of corruption, than do the 

current per-election limits. After all, “the dangers of large, corrupt 

contributions and the suspicion that large contributions are corrupt are 

neither novel nor implausible.” Shrink Mo., 528 U.S. at 391. Plaintiffs’ 

argument suggests that three $2,700 donations are functionally 

equivalent to one $8,100 donation. Yet these do not equally serve the 

legislature’s anti-corruption interest. The “sticker shock” of such large 

lump-sum payments could damage confidence in the electoral process in 

a way that a series of smaller donations would not. “However similar 

13 Indeed, taking plaintiffs’ reasoning to its absurd logical 

conclusion, one could simply multiply contribution limits across election 

cycles. If Congress has determined that $5,400 for one election cycle 

could not corrupt, then, by simple arithmetic, Congress has also 

determined that $27,000 for five election cycles could not corrupt. 

Therefore, a donor could simply hand over a $27,000 lump-sum check to 

a candidate designated to that candidate’s next five election cycles, or to 

pay off debt remaining from the past five cycles. See 11 C.F.R. §§ 

110.1(b)(2)(i), -(3)(i), -(4)-(5), 110.3(c)(3)-(4). By front- or back-loading 

donations in this manner, donors could give far larger amounts at one 

time.

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USCA Case #16-5194 Document #1635913 Filed: 09/15/2016 Page 35 of 40
the two [contributions] may be in substance, a State may conclude that 

they present markedly different appearances to the public.” WilliamsYulee, 135 S. Ct. at 1669.

FECA’s per-election structure is closely drawn to serve Congress’s

important interests. Buckley, 424 U.S. at 25. Just as no dollar cap can

perfectly balance anti-corruption concerns and associational rights, no 

timing mechanism will equally satisfy all potential donors. But closely 

drawn scrutiny does not require perfection. McCutcheon, 134 S. Ct. at 

1456-57. FECA’s solution is more than “reasonable” and its regulations 

are “in proportion to the interest served.” Id.

CONCLUSION

For the foregoing reasons, this Court should find in favor of the 

FEC on the certified question raised in this proceeding.

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Respectfully submitted,

/s/ J. Gerald Hebert

J. GERALD HEBERT

 ghebert@campaignlegalcenter.org

 (D.C. Bar No. 447676)

Tara Malloy

Megan McAllen

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

(202) 682-0240

Counsel for Amici Curiae

Dated: September 15, 2016

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USCA Case #16-5194 Document #1635913 Filed: 09/15/2016 Page 37 of 40
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

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

P. 32(a)(7)(B) because this brief contains 5093 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 2007 in Times New Roman 14 point font.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

Dated: September 15, 2016

26

USCA Case #16-5194 Document #1635913 Filed: 09/15/2016 Page 38 of 40
CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of September 2016, I caused 

the foregoing BRIEF AMICI CURIAE to be filed electronically using 

this Court’s CM/ECF System and sent via the ECF electronic 

notification system to the following CM/ECF registered counsel of 

record:

Attorneys Representing Plaintiffs Holmes, et al.:

Allen Joseph Dickerson,

 adickerson@campaignfreedom.org

Center for Competitive Politics

124 West Street, South

Alexandria, VA 22314

(703) 894-6800

Attorneys Representing Defendant Federal Election 

Commission:

Erin Rebecca Chlopak,

 echlopak@fec.gov

Charles P. Kitcher, 

 ckitcher@fec.gov

Kevin Andrew Deeley, 

 kdeeley@fec.gov

Steve Nicholas Hajjar,

 shajjar@fec.gov

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USCA Case #16-5194 Document #1635913 Filed: 09/15/2016 Page 39 of 40
Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1528

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

copies of the brief to be filed with the Clerk on September 15, 2016.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

28

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