No. 12-536 

IN THE 

Supreme Court of the United States 

SHAUN MCCUTCHEON, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

ON APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE DISTRICT OF COLUMBIA 

BRIEF OF AMICI CURIAE 

REPRESENTATIVES CHRIS VAN HOLLEN AND 

DAVID PRICE IN SUPPORT OF APPELLEE 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, NW 

Washington, DC 20009 

FRED WERTHEIMER

DEMOCRACY 21 

2000 Massachusetts Ave., NW 

Washington, DC 20036 

DONALD J. SIMON

SONOSKY, CHAMBERS, 

 SACHSE, ENDRESON

 & PERRY, LLP

1425 K Street, NW 

Suite 600 

Washington, DC 20005 

SETH P. WAXMAN

 Counsel of Record

RANDOLPH D. MOSS

WEILI J. SHAW

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Ave., NW 

Washington, DC 20006 

(202) 663-6800 

seth.waxman@wilmerhale.com 

ROGER M. WITTEN

WILMER CUTLER PICKERING

 HALE AND DORR LLP

7 World Trade Center 

New York, NY 10007
ii 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES .......................................... iii 

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

INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................................... 2 

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

I. THE AGGREGATE CONTRIBUTION LIMITS 

AT ISSUE IN THIS CASE ARE JUST THAT—

CONTRIBUTION LIMITS—AND MUST BE 

JUDGED ACCORDINGLY ................................................ 4 

II. THE AGGREGATE CONTRIBUTION LIMITS 

ARE CLOSELY DRAWN TO COUNTER REAL 

THREATS OF CORRUPTION ........................................ 11 

A. This Court Has Consistently Recognized That Contribution Limits Serve 

The Important Interests Of Preventing 

Corruption, The Appearance Of Corruption, And Circumvention ............................. 11 

B. Aggregate Contribution Limits Prevent Fundraising Practices That Carry 

Inherent Risks Of Corruption And Circumvention ........................................................... 12 

CONCLUSION ................................................................. 28 
iii 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

Arizona Free Enterprise Club’s Freedom Club 

PAC v. Bennett, 131 S. Ct. 2806 (2011) ..................... 4 

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

California Democratic Party v. Jones, 530 U.S. 

567 (2000) ..................................................................... 21 

California Medical Ass’n v. FEC, 453 U.S. 182 

(1981) .......................................................................... 5, 8 

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

Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604 (1996) .................. 20 

FEC v. Beaumont, 539 U.S. 146 (2003) .......... 3, 4, 7, 9, 10 

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 

(2001) ...................................................... 4, 11, 22, 23, 24 

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

449 (2007) ....................................................................... 5 

Green Party of Connecticut v. Garfield, 616 

F.3d 189 (2d Cir. 2010) ............................................... 10 

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

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) ....................................................... 7 

Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011) ............. 9 

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) .............. 10 

Randall v. Sorrell, 548 U.S. 230 (2006) .................. 5, 7, 26 
iv 

TABLE OF AUTHORITIES—Continued 

Page(s) 

Republican National Committee v. FEC, 130 

S. Ct. 3544 (2010) .................................................... 7, 22 

Republican National Committee v. FEC, 698 

F. Supp. 2d 150 (D.D.C. 2010) ..................................... 7 

Tashjian v. Republican Party of Connecticut, 

479 U.S. 208 (1986) ..................................................... 21 

United States v. Danielczyk, 683 F.3d 611 (4th 

Cir. 2012) ........................................................................ 9 

STATUTES AND REGULATIONS 

2 U.S.C. 

§ 432(e)(3)(B) ............................................................... 20 

§ 441a(a)(4) .................................................................. 19 

§ 441a(a)(8) .................................................................. 23 

§ 441i(e)(1)(A) .............................................................. 12 

Federal Election Campaign Act of 1971, 2 

U.S.C. §§ 431 et seq. ................................................... 12 

Bipartisan Campaign Reform Act of 2002, Pub. 

L. No. 107-155, 116 Stat. 81 ....................................... 19 

11 C.F.R. § 109.33 .............................................................. 20 

OTHER AUTHORITIES 

Center for Responsive Politics, McCutcheon vs 

FEC, http://www.opensecrets.org/overview/ 

mccutcheon.php (last visited July 24, 2013)............ 16 
v 

TABLE OF AUTHORITIES—Continued 

Page(s) 

Brudnick, Ida A., Congressional Research Service, Congressional Salaries and Allowances (2013), available at http://www. 

senate.gov/CRSReports/crs-pub-lish.cfm? 

pid='0E%2C*PL%5B%3D%23P%20%20%0A .......... 25 

FEC, 2013 Coordinated Party Expenditure 

Limits, http://www.fec.gov/info/charts_ 

441ad_2013.shtml (last visited July 24, 

2013) ............................................................................. 20 

FEC, 2012 Coordinated Party Expenditure 

Limits, http://www.fec.gov/info/charts_ 

441ad_2012.shtml (last visited July 24, 

2013) ............................................................................. 20 

Knott, Alex, Politicians Create Record Number of Joint Fundraising Committees, Roll 

Call (Sept. 17, 2010), http://www.rollcall. 

com/news/-49934-1.html?pg=1 .................................. 18 

Team Boehner, Contribute, https://www. 

geticontribute.com/teamboehner (last visited July 24, 2013) ....................................................... 17 

U.S. Census Bureau, State & County QuickFacts, http://quickfacts.census.gov/qfd/ 

states/00000.html (last visited July 25, 

2013) ............................................................................. 25 
 

INTEREST OF AMICI CURIAE1

 

Chris Van Hollen is the United States Representative for the Eighth Congressional District of the State 

of Maryland and the ranking Democrat on the House 

Budget Committee. From 2007 to 2011, Representative Van Hollen also served as Chairman of the Democratic Congressional Campaign Committee. 

David Price is the United States Representative 

for the Fourth Congressional District of the State of 

North Carolina. He serves on the House Appropriations Committee and is the ranking Democrat on the 

Homeland Security Appropriations Subcommittee. 

As federal officeholders, candidates, and leaders of 

their political party, amici are directly affected by the 

aggregate contribution limits at issue in this case. 

Amici believe strongly in the necessity of recognizing 

the crucial role that political parties play in our system 

of democratic representative government. At the same 

time, they recognize the critical importance of limits on 

contributions to political parties and candidates in preserving our system against the reality and appearance 

of corruption. Aggregate limits on contributions are 

essential to achieving the latter goal while fully accommodating the former. Amici submit this brief because they believe that their perspective may be of assistance to the Court as it considers the issues in this 

case. 

 1

 Written consents to the filing of this amicus brief have been 

filed with the Clerk of the Court. No counsel for a party authored 

this brief in whole or in part, and no person other than amici or 

their counsel made a monetary contribution to the preparation or 

submission of this brief. 
2 

INTRODUCTION AND SUMMARY OF ARGUMENT 

This case starkly poses the question whether the 

competition for the massive individual contributions 

that would be permitted without aggregate contribution limits would threaten to create the reality or appearance of corruption. This Court’s decisions leave no 

doubt that the answer is yes. Striking down these limits would create obvious possibilities for even the most 

blatant forms of corruption: solicitations for hundreds 

of thousands or millions of dollars, creating the opportunity for transactions exchanging contributions for anticipated political favors from officeholders. While 

there may be disagreement about the precise boundaries of corruption and its appearance, it has long been 

settled that such arrangements, at least, fall within its 

core. 

Unlike expenditure limits, contribution limits impose “only a marginal restriction upon the contributor’s 

ability to” communicate, and are thus subject to a less 

demanding standard of review. Buckley v. Valeo, 424 

U.S. 1, 20 (1976) (per curiam). Here, the aggregate contribution limits that Congress enacted serve the important interest in curtailing actual and apparent corruption. Absent those limits, extremely large contributions to party committees and affiliated candidates 

would directly threaten to foster the reality or appearance of corrupt arrangements resulting in officeholders 

beholden to their large financial backers. 

In particular, elimination of aggregate limits would 

allow candidates and officeholders to use joint fundraising committees to solicit six- and seven-figure donations from single donors. Regardless of the use to 

which the contributions were ultimately put, such 

transactions would create the opportunity for, and the 
3 

appearance of, the most blatant forms of quid quo pro 

corruption. 

Large donations to parties and affiliated candidates, moreover, benefit candidates in ways likely to 

foster corruption directly as well as through the circumvention of the base candidate contribution limits 

that are the most fundamental check on corruption. 

Parties and their candidates are part of a common political enterprise with shared interests. Party committees 

can freely transfer money among themselves and spend 

it in a variety of ways that directly benefit candidates. 

Because experience demonstrates that parties and donors find ways to target funds for particular candidates 

that prohibitions on “earmarking” can neither detect 

nor prevent, eliminating aggregate limits would enable 

donors to give massive donations with the expectation 

that they would be spent to support particular candidates. And, even when those very large donations 

were used to support the party more broadly, they 

would still have been provided in response to solicitations from the candidates and officeholders who make 

up the party and its leadership. Either way, such inflated donations would result in officeholders and party 

leaders beholden to their extraordinary financial patrons. 

The important—indeed, compelling—governmental 

interest in preventing actual or apparent corruption 

provided ample basis to uphold individual and aggregate contribution limits in Buckley, 424 U.S. at 23-29, 

38, the ban on corporate contributions in FEC v. 

Beaumont, 539 U.S. 146 (2003), and the soft money ban 

in McConnell v. FEC, 540 U.S. 93, 132-189 (2003), and 

it provides more than sufficient basis to uphold the aggregate contribution limits at issue here. 
4 

ARGUMENT 

I. THE AGGREGATE CONTRIBUTION LIMITS AT ISSUE IN 

THIS CASE ARE JUST THAT—CONTRIBUTION LIMITS—

AND MUST BE JUDGED ACCORDINGLY 

A foundational principle of this Court’s modern 

campaign finance precedent is the distinction between 

limits on expenditures and limits on contributions. See, 

e.g., Buckley v. Valeo, 424 U.S. 1, 19-22 (1976) (per curiam); McConnell v. FEC, 540 U.S. 93, 120, 137 (2003), 

overruled in other part by Citizens United v. FEC, 558 

U.S. 310 (2010). Under the approach consistently applied by this Court, contribution limits are not subject 

to the same strict scrutiny as expenditure limits. Instead, contribution limits are constitutional so long as 

they are “‘closely drawn’ to serve a ‘sufficiently important interest.’” Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011). 

As the Court explained in Buckley, unlike “a limitation 

upon expenditures for political expression, 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 communications.” 424 U.S. at 20-

21. Accordingly, the courts have long applied a “less 

rigorous standard of review” to contribution limits. 

McConnell, 540 U.S. at 137. 

The significance of this distinction is borne out by 

this Court’s holdings. Although the Court has at times 

struck down expenditure limits, see, e.g., Citizens United, 558 U.S. at 365-366; Buckley, 424 U.S. at 58-59, it 

has uniformly upheld federal statutory limits on contributions to candidates, political parties, and political 

committees, see McConnell, 540 U.S. at 142-185; FEC

v. Beaumont, 539 U.S. 146, 149 (2003); FEC v. Colora-
5 

do Republican Fed. Campaign Comm., 533 U.S. 431, 

465 (2001) (Colorado II); California Med. Ass’n v. 

FEC, 453 U.S. 182, 201 (1981); Buckley, 424 U.S. at 24-

36.2

 As this Court explained in Citizens United, “contribution limits, ... unlike limits on independent expenditures, have been an accepted means to prevent ... 

corruption.” 558 U.S. at 359 (citation omitted). 

This distinction stems from fundamental differences between the two types of restrictions. The Court 

has subjected expenditure limits to strict scrutiny because they are direct restrictions on speech. See Citizens United, 558 U.S. at 339; see also FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449, 464 (2007) (opinion 

of Roberts, C.J.). Thus, the Court has described limits 

on campaign expenditures as “direct and substantial 

restraints on the quantity of political speech” that “limit political expression ‘at the core of our electoral process and of ... First Amendment freedoms,’” Buckley, 

424 U.S. at 39, and it has applied a correspondingly 

stringent standard of review. 

By contrast, the Court has long emphasized that 

because “the transformation of contributions into political debate involves speech by someone other than the 

contributor,” contribution limits “entail[] only a marginal restriction” on speech: 

A limitation on the amount of money a person 

may give to a candidate or campaign organiza-

 2

 The only case in which this Court has struck down a contribution limit is Randall v. Sorrell, 548 U.S. 230 (2006), which struck 

down state contribution limits of as little as $200 per two-year cycle on the grounds that they effectively “prevent[ed] challengers 

from mounting effective campaigns against incumbent officeholders.” Id. at 249 (opinion of Breyer, J.). Appellants have raised no 

such concern here. 
6 

tion thus involves little direct restraint on his 

political communication, for it permits the 

symbolic expression of support evidenced by a 

contribution but does not in any way infringe 

the contributor’s freedom to discuss candidates 

and issues. While contributions may result in 

political expression if spent by a candidate or 

an association to present views to the voters, 

the transformation of contributions into political debate involves speech by someone other 

than the contributor. 

Buckley, 424 U.S. at 20, 21. Moreover, “[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.” Id. at 21 (emphasis added). Accordingly, “contribution limits impose serious burdens 

on free speech only if they are so low as to ‘preven[t] 

candidates and political committees from amassing the 

resources necessary for effective advocacy.’” 

McConnell, 540 U.S. at 135 (emphases added). 

Contributions can also be a means of exercising associational rights because they can “serve[] to affiliate a 

person with a candidate.” Buckley, 424 U.S. at 22. 

However, a contributor’s ability to associate with a 

candidate or organization is not fundamentally altered 

based on the size of the contribution. And although 

contributions “enable[] like-minded persons to pool 

their resources in furtherance of common political 

goals,” the burden of contribution limits is limited because they still “allow associations ‘to aggregate large 

sums of money to promote effective advocacy.’” 

McConnell, 540 U.S. at 136. A contribution limit will 

thus be sustained if it is “‘closely drawn’ to match a ‘suf-
7 

ficiently important interest.’” Beaumont, 539 U.S. at 

162 (quoting Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377, 387-388 (2000)). 

The Court’s opinions have consistently adhered to 

this understanding of contributions. Thus, in Beaumont, the Court reiterated that “[g]oing back to Buckley v. Valeo, restrictions on political contributions have 

been treated as merely ‘marginal’ speech restrictions 

subject to relatively complaisant review under the 

First Amendment, because contributions lie closer to 

the edges than to the core of political expression.” 539 

U.S. at 161 (citation omitted). The Court made exactly 

the same point in McConnell, again emphasizing “the 

limited burdens [contribution restrictions] impose on 

First Amendment freedoms” and “adhering to the 

analysis of contribution limits that the Court has consistently followed since Buckley was decided.” 540 U.S. 

at 136, 137-138. In Citizens United, the Court again 

preserved what the Chief Justice referred to as “the 

careful line that Buckley drew to distinguish limits on 

contributions to candidates from limits on independent 

expenditures on speech.” 558 U.S. at 379 (Roberts, 

C.J., concurring); see also Randall v. Sorrell, 548 U.S. 

230, 246-248 (2006) (opinion of Breyer, J.) (same); id. at 

281-282, 284-285 (Souter, J., dissenting) (same). And in 

Republican National Committee v. FEC, 130 S. Ct. 

3544 (2010), the Court summarily affirmed the holding 

of a three-judge district court that limits on contributions to national, state, and local political party committees remain subject to less rigorous scrutiny than expenditure limits, and are constitutional when subjected 

to that scrutiny. See Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150, 156 (D.D.C. 2010). 
8 

As this Court recognized in Buckley, aggregate

contribution limits are subject to the same level of scrutiny as base contribution limits. 424 U.S. at 38. Aggregate contribution limits implicate the same interests as 

do other contribution limits the Court has sustained, 

and there is accordingly no reason to apply a different 

standard of review. Indeed, because aggregate limits, 

if anything, operate less directly to affect a contributor’s ability to associate with any particular candidate 

or committee, they also implicate First Amendment 

concerns less directly. 

Appellants rightly do not contend that the aggregate contribution limits at issue here prevent them 

from directly expending money on speech, as did the 

expenditure limits struck down in Buckley and Citizens 

United. See California Med. Ass’n, 453 U.S. at 196 

(holding that contributing funds to a political committee 

does not turn the committee’s speech into the contributor’s for First Amendment purposes). Of course, a contribution involves speech to the extent it serves as a 

“symbolic expression of support.” Buckley, 424 U.S. at 

21. But the aggregate limits at issue here do not prevent contributors from making that symbolic expression with respect to as many candidates as they wish. 

Instead, the aggregate limits affect only the size of such 

contributions, which has little significance to the speech 

right: As this Court has explained, the quantity of expression “does not increase perceptibly” with the 

amount of the contribution. Id. The aggregate limits at 

issue here therefore burden speech no differently than 

those upheld in this Court’s previous cases. 

Nor do the aggregate limits burden association in a 

different manner than other contribution limits sustained by this Court. McCutcheon concedes (at 25) that 
9 

aggregate limits do not directly restrict how many candidates contributors may associate with through contributions, but he protests that the aggregate limits 

may prevent giving the legal maximum to each candidate. But meaningful association does not require maximal support. And even if an aggregate limit imposes 

some theoretical outside limit on the number of candidates, parties, and political committees with whom a 

contributor can associate, the same was true of the 

$25,000 aggregate limit at issue in Buckley. 424 U.S. at 

38. The Court nonetheless applied the same level of 

scrutiny to “this quite modest restraint upon protected 

political activity” as to the other contribution limits it 

sustained. Id. To the extent the aggregate limits here 

differ from the lower limit sustained in Buckley in 

terms of the number of candidates and organizations 

that can be supported, and the level of support allowed, those are merely differences in degree. “Such 

distinctions in degree become significant only when 

they can be said to amount to differences in kind.” Id.

at 30.

Ultimately, the nature of the act of contributing—

and hence the interests it implicates—does not vary 

depending on whether it is restricted on an aggregate 

or per-recipient basis, and it is the nature of the activity restricted that determines the level of scrutiny. 

Beaumont, 539 U.S. at 162. In Beaumont, the Court 

upheld the longstanding statutory prohibition on corporate contributions—a prohibition far stricter than the 

aggregate limits at issue here. See id. at 149.3

 Beau-

 3 Accord, e.g., United States v. Danielczyk, 683 F.3d 611, 617 

(4th Cir. 2012) (upholding ban on corporate contributions under 

the Buckley standard as applied in Beaumont), cert. denied, 133 S. 

Ct. 1459 (2013); Ognibene v. Parkes, 671 F.3d 174, 194-197 (2d Cir. 
10 

mont held that the nature of the activity affected by 

the prohibition at issue in that case—contributing money to candidates, parties, and political committees—

was the same as the activity affected by a contribution 

limit and hence bore the same relationship to First 

Amendment interests. Id. at 161-162. And because, in 

turn, “the level of scrutiny is based on the importance 

of the ‘political activity at issue’ to effective speech or 

political association,” id. at 161, the same standard of 

review applied to the contribution prohibition in 

Beaumont as to the contribution limits in Buckley. 

The limits at issue here apply to activity of exactly 

the same nature: Aggregate contribution limits limit 

contributions. The First Amendment interests they 

affect are the same interests affected by any other limit 

on contributions. The constitutional standard against 

which they must be judged is accordingly the one applicable to contributions. See McConnell, 540 U.S. at 139 

(declining to apply strict scrutiny because the provisions at issue did not “burden[] speech” differently 

from any other contribution limit). 

 

2011) (applying Buckley standard to uphold ban on contributions 

by non-corporate entities), cert. denied, 133 S. Ct. 28 (2012); Preston v. Leake, 660 F.3d 726, 732-735 (4th Cir. 2011) (applying Buckley standard to uphold ban on contributions by lobbyists); Green 

Party of Conn. v. Garfield, 616 F.3d 189, 198-199 (2d Cir. 2010) 

(applying Buckley standard to bans on contributions by government contractors and lobbyists), cert. denied, 131 S. Ct. 3090 

(2011). 
11 

II. THE AGGREGATE CONTRIBUTION LIMITS ARE CLOSELY 

DRAWN TO COUNTER REAL THREATS OF CORRUPTION 

A. This Court Has Consistently Recognized That 

Contribution Limits Serve The Important Interests Of Preventing Corruption, The Appearance Of Corruption, And Circumvention 

In every case in which this Court has considered 

federal contribution limits, it has upheld those limits 

because they serve an interest the Court has always 

deemed sufficiently important to justify campaign finance regulation: preventing corruption and the appearance of corruption. Very large political contributions create both the risk that officeholders and potential officeholders will be tempted to forsake their public 

duties and the opportunity for corrupt bargains. They 

thus threaten to foster both actual corruption and, what 

may be just as damaging, its appearance. Buckley, 424 

U.S. at 26-27; accord Citizens United, 558 U.S. at 345, 

356-357. 

These justifications suffice even though corrupt 

bargains would otherwise be illegal, both because the 

difficulty of unearthing and proving their existence 

means that “the scope of such pernicious practices can 

never be reliably ascertained,” Citizens United, 558 

U.S. at 356 (quoting Buckley, 424 U.S. at 27), and because “public awareness of the opportunities for abuse 

inherent in a regime of large individual financial contributions” may otherwise erode “‘confidence in the system of representative Government ... to a disastrous 

extent,’” Buckley, 424 U.S. at 27 (emphasis added). 

The government’s anti-corruption interest is “sufficient to justify not only contribution limits themselves, 

but laws preventing the circumvention of such limits.” 

McConnell, 540 U.S. at 144; see also Colorado II, 533 
12 

U.S. at 456 (“[A]ll members of the Court agree that circumvention is a valid theory of corruption.”). Thus, 

Buckley upheld an aggregate contribution limit because it prevented donors from circumventing the base 

limits and “contribut[ing] massive amounts of money to 

a particular candidate through the use of unearmarked 

contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party.” 424 U.S. at 38. “The limited, 

additional restriction on associational freedom imposed 

by the overall ceiling [was] thus no more than a corollary of the basic individual contribution limitation that 

we have found to be constitutionally valid.” Id. 

B. Aggregate Contribution Limits Prevent Fundraising Practices That Carry Inherent Risks 

Of Corruption And Circumvention 

The aggregate contribution limits at issue here are 

likewise constitutional because they prevent a variety 

of fundraising practices that raise the precise concerns 

this Court has previously held to justify contribution 

limits. 

1. Absent aggregate contribution limits, candidates and officeholders would be permitted to solicit 

massive donations to their parties and fellow candidates, explicitly and directly from their donors. Candidates and officeholders are allowed to solicit any contributions that “are subject to the limitations, prohibitions, and reporting requirements of” the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. §§ 431 et 

seq. 2 U.S.C. § 441i(e)(1)(A). And candidates and parties often create joint fundraising committees to receive combined contributions from a single donor to be 

allocated, up to the applicable per-contribution limits 

for the relevant election cycles, to as many national, 
13 

state, and local party committees and candidates as 

possible. Without aggregate limits, such practices 

would easily allow candidates and officeholders to solicit and receive contributions that substantially exceed 

$1 million. 

• Congressional leaders could form a joint fundraising committee soliciting the maximum contributions per cycle for their two national party 

campaign committees4 ($64,800 each, for a total 

of $129,600), as well as the maximum per-cycle 

contributions for 435 House and 33 Senate candidates ($5,200 each, for a total of $2,433,600). 

The committee could solicit and receive 

amounts totaling $2,563,200 from a single donor.5

• A party’s national leaders could join forces to 

solicit the maximum contributions per cycle for 

all three national party committees ($64,800 

each, for a total of $194,400), all state party 

committees ($20,000 each, for a total of 

$1,000,000), and the party’s presidential candidate and each of its House and Senate candidates ($5,200 each, for a total of $2,438,800). 

The grand total: $3,633,200. 

• Presidential candidates (or candidates for other 

federal offices) and their parties could solicit 

the maximum contributions per cycle for their 

 4

 Those committees are the National Republican Senatorial 

Committee and the National Republican Congressional Committee, and the Democratic Senatorial Campaign Committee and the 

Democratic Congressional Campaign Committee. 

5

 Current contribution limits are collected in the government’s brief (at 9-10). 
14 

own campaign committees ($5,200), plus the 

maximum for the national party committees 

($64,800 each, for a total of $194,400), plus the 

maximum for state party committees ($20,000 

each, for a total of $1,000,000). The total 

amount such a candidate or committee could solicit from a single donor would be $1,199,600. 

As this Court recognized in McConnell, the prospect of candidates soliciting and receiving multimillion dollar checks from donors creates both the risk 

of corruption and the appearance of corruption. To be 

sure, these funds might not all be expended directly on 

the candidate’s own campaign. But this Court has not 

required a direct financial benefit to the candidate’s 

own campaign committee to recognize the potential for 

corruption or its appearance when a contributor makes 

a large donation at a candidate’s request. It is enough 

that the contribution benefits the party and its candidates, directly satisfying the request. Thus, in 

McConnell, seven Justices held that solicitation of very 

large contributions for national parties presented corruption concerns regardless of how those contributions 

were ultimately used. As the majority observed: 

Large ... donations [to parties or other organizations] at a candidate’s or officeholder’s behest 

give rise to all of the same corruption concerns 

posed by contributions made directly to the 

candidate or officeholder. Though the candidate may not ultimately control how the funds 

are spent, the value of the donation to the candidate or officeholder is evident from the fact of 

the solicitation itself. 

McConnell, 540 U.S. at 182. Justice Kennedy, joined 

by Chief Justice Rehnquist, agreed, explaining that 
15 

“regulation of a candidate’s solicitation of funds” “furthers a constitutionally sufficient” anti-corruption interest, even “if the funds are given to another,” because 

“[t]he making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the 

payment (by granting his request).” Id. at 308 (Kennedy, J., concurring in judgment in part and dissenting in 

part). Thus, limiting the amounts candidates may raise 

for their parties, as well as other party candidates and 

organizations, “satisfies Buckley’s anticorruption rationale and the First Amendment’s guarantee.” Id. 

McConnell also recognized more generally that 

“large ... contributions to national parties are likely to 

create actual or apparent indebtedness on the part of 

federal officeholders, regardless of how those funds are 

ultimately used.” 540 U.S. at 155. That candidates and 

officeholders may be obligated by contributions to their 

party, or to other candidates, is not surprising. “The 

national committees of the two major parties are both 

run by, and largely composed of, federal officeholders 

and candidates.” Id. Those officeholders are tasked in 

significant part with raising money for the party and its 

candidates, and their future prospects for leadership 

posts and even electoral success are influenced by how 

well they perform that role. Cf. id. at 156 (citing evidence that “‘political parties[] control the resources 

crucial to subsequent electoral success and legislative 

power’” and that “officeholders’ reelection prospects 

are significantly influenced by attitudes of party leadership”). The electoral successes of the candidate’s party, moreover, dictate whether the candidate, if elected, 

will serve in the majority or the minority in Congress. 

Such officeholders therefore stand to benefit from contributions to the party both directly, through party 
16 

spending, and indirectly, through their success at fundraising for and electing other candidates. 

Eliminating FECA’s aggregate limits on party and 

candidate contributions would effectively negate the 

interests served by the soft-money solicitation ban upheld in McConnell by once again allowing candidates 

and officeholders to seek extremely large contributions 

to benefit themselves, their parties, and their political 

allies. Past experience provides every reason to believe that parties and candidates would take advantage 

of this opportunity. During the soft-money period, 

when limits on contributions to political parties were 

bypassed through contributions not covered by FECA 

(because they were supposedly not for federal election 

purposes), the parties and their officeholders established joint fundraising committees to solicit FECAlimited contributions to the candidates together with 

limited hard-money or unlimited soft-money contributions to party committees. In the 2000 elections, the 

last in which soft-money contributions to the national 

parties were permitted, individual contributors made 

more than 500 soft-money contributions to Democratic 

or Republican party committees of at least $100,000.6

 

Several made contributions of at least $1 million. The 

number of possible large donors today, and the amounts 

they would be willing to contribute, would undoubtedly 

be even higher, and if the parties and their candidates 

were once more permitted to tap them for amounts ex-

 6

 The figures cited in the paragraph accompanying this footnote and the two that follow were compiled by the Center for Responsive Politics from FEC disclosure data. See Center for Responsive Politics, McCutcheon vs FEC, http://www.opensecrets. 

org/overview/mccutcheon.php (last visited July 24, 2013). 
17 

ceeding the current aggregate limits, they would certainly do so. 

This conclusion is confirmed by the fact that parties 

and candidates have continued to operate joint fundraising committees up to the limits permitted by the 

soft-money ban and FECA’s aggregate limits. Thus, in 

the 2012 presidential elections, both major-party presidential candidates operated joint fundraising committees called, respectively, the Obama Victory Fund and 

Romney Victory, which sought both contributions to 

the candidates’ campaign committees and the maximum 

contributions to party committees permissible under 

the applicable aggregate limits ($70,800 for the 2012 

election cycle). Hundreds of donors responded: 721 

donors made maximum party contributions through 

Romney Victory, while 536 hit the party aggregate 

caps through the Obama Victory Fund. If the presidential candidates had been able to ask for contributions exceeding half a million dollars per year for all 

party committees in conjunction with their own campaign committees—as they would have absent aggregate limits—they would undoubtedly have done so. 

And donors would almost certainly have responded 

with six-figure contributions.7

 7

 Such joint fundraising committees are not limited to presidential candidates. For example, House Speaker John Boehner 

operates “a joint fundraising committee composed of Friends of 

John Boehner ..., the National Republican Congressional Committee ..., THE FREEDOM PROJECT ... and the Ohio Republican 

Party State Central & Executive Committee,” which accepts donations from individuals of more than ten times the maximum contribution an individual could make to the candidate directly. Team 

Boehner, Contribute, https://www.geticontribute.com/teamboehner 

(last visited July 24, 2013). 
18 

All told, more than 1,700 donors gave the maximum 

permitted amount to committees of the major parties in 

the 2012 election cycle, accounting for well over $100 

million in contributions.8

 Almost 600 reached the aggregate limit on contributions to federal candidates. 

These figures indicate the extent to which the existing 

limits provide scope for substantial contributions by 

those who are in a position to, and choose to, make 

them. But they also starkly reveal the potential for 

candidates and officeholders to solicit far larger contributions if allowed to do so. 

2. For the reasons described above, the government has a strong anti-corruption interest in preventing the massive combined contributions that would occur absent aggregate limits, even where those funds 

were not ultimately spent directly to support a targeted candidate. But, in practice, it is likely that parties 

and candidates would find ways to ensure that large 

contributions were spent on behalf of those candidates 

the contributors sought to obligate, exacerbating the 

problem. Candidates, political parties, and their associated committees have substantial freedom to transfer 

funds to each other, and to spend them to support can-

 

Similarly, in 2010, California Senator Barbara Boxer operated 

a variety of joint fundraising committees, joining forces with the 

Democratic National Committee, the Democratic Senatorial Campaign Committee, the California Democratic Party, and other federal candidates to solicit amounts supporting her reelection that 

significantly exceeded the limit on direct contributions to her campaign committee. See Knott, Politicians Create Record Number of 

Joint Fundraising Committees, Roll Call (Sept. 17, 2010), 

http://www.rollcall.com/news/-49934-1.html?pg=1. 

8

 This number includes donors who gave through the presidential candidates’ joint fundraising committees as well as others 

who did not. 
19 

didates of their choosing, making it possible to target 

contributions and to circumvent the base limits on contributions to candidates. 

This potential for corruption and its appearance exists because federal campaign finance law quite appropriately recognizes the important role of political parties in our system and fosters their relationship with 

their candidates. Ironically, when the current aggregate limits that appellants target were established in 

the Bipartisan Campaign Reform Act of 2002 (BCRA), 

Pub. L. No. 107-155, 116 Stat. 81, they reflected substantial increases designed to ensure that although parties would henceforth be limited to “hard-money” contributions (i.e., those subject to FECA’s limits), the 

parties’ fundraising and their relationship to their candidates would not be handicapped. Prior to BCRA’s 

enactment, contributions to national party committees 

were limited to $20,000 per year, subject to the $25,000 

aggregate limit that had remained unchanged since the 

time of Buckley. BCRA significantly increased the limits on contributions to each national party committee 

and provided for the first time that they would be indexed for inflation. BCRA also substantially increased 

the overall aggregate limit, indexed it to inflation, and 

created sub-aggregate limits within it so that contributions to candidates and parties no longer applied toward the same limit.

In addition to benefiting from these very high contribution limits, the political parties have the freedom 

to transfer unlimited amounts of the funds they raise 

among their national, state, and local party committees. 

2 U.S.C. § 441a(a)(4). Thus, the parties may divide and 

direct their financial resources as they see fit. Party 

committees may make substantial expenditures of the-
20 

se funds in coordination with their candidates—from 

just below $100,000 to over $2.5 million for Senate candidates (depending on the population of the state), 

nearly $50,000 for most candidates for the House of 

Representatives,9

 and well over $20 million for candidates for the Presidency.10 In addition, the parties may 

make unlimited non-coordinated expenditures in support of their candidates. See McConnell, 540 U.S. at 

213-219 (invalidating BCRA provision that required 

parties to choose between engaging in limited coordinated spending and unlimited coordinated spending); 

see also Colorado Republican Fed. Campaign Comm.

v. FEC, 518 U.S. 604 (1996) (Colorado I) (holding that 

First Amendment prohibits restriction on parties’ noncoordinated spending). Candidates may also contribute 

funds from their own campaign committees to other 

candidates (subject to FECA contribution limits, see 2 

U.S.C. § 432(e)(3)(B)), and they may make unlimited

transfers of their campaign committee funds to national 

and state party committees, which can then use them to 

 9

 A higher limit, equal to that of the limit applicable to Senate 

candidates in the least populous states, applies for House candidates who campaign statewide in those same states because they 

have only one United States Representative. 

10 See FEC, 2013 Coordinated Party Expenditure Limits, 

http://www.fec.gov/info/charts_441ad_2013.shtml (last visited July 

24, 2013); FEC, 2012 Coordinated Party Expenditure Limits, 

http://www.fec.gov/info/charts_441ad_2012.shtml (last visited July 

24, 2013). The limits on coordinated spending for House and Senate races apply separately to the national party committees and 

state party committees in the relevant state. A state party committee can assign its spending right to the national party committee, or vice versa, thereby doubling the coordinated spending by 

the party committee. See 11 C.F.R. § 109.33. 
21 

support other party candidates through coordinated or 

non-coordinated expenditures. 

These features of our campaign finance laws, as enacted by Congress and interpreted and limited by this 

Court, reflect the central importance of political parties 

to our country’s electoral process. As this Court has 

stated: 

The formation of national political parties was 

almost concurrent with the formation of the 

Republic itself. Consistent with this tradition, 

the Court has recognized that the First 

Amendment protects “the freedom to join together in furtherance of common political beliefs[.]” 

California Democratic Party v. Jones, 530 U.S. 567, 

574 (2000) (citation omitted) (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986)). By 

permitting the parties, their leaders, and their candidates to work together to wage effective political campaigns, the campaign finance laws foster these important interests. And by allowing candidates and officeholders to participate in the work of their parties by 

soliciting lawful contributions for other candidates and 

party organizations subject to applicable limits, the 

laws avoid unduly circumscribing First Amendment 

rights. See McConnell, 540 U.S. at 314 (Kennedy, J., 

concurring in judgment in part and dissenting in part) 

(“These provisions help ensure that the law is narrowly 

tailored to satisfy First Amendment requirements.”). 

At the same time, the close relationships among the 

parties and their candidates and officeholders, together 

with the features of the campaign finance laws described above, create obvious potential means for fostering corruption and its appearance. As this Court has 
22 

recognized, political parties, in addition to their many 

positive functions in fostering an effective and competitive representative democracy, may also serve as 

“agents for spending on behalf of those who seek to 

produce obligated officeholders” and “conduits for contributions meant to place candidates under obligation.” 

Colorado II, 533 U.S. at 452. 

McConnell, upholding the ban on party soft-money 

contributions that was recently summarily reaffirmed 

by this Court in Republican National Committee, 130 

S. Ct. 3544, explained: 

The idea that large contributions to a national 

party can corrupt or, at the very least, create 

the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has 

placed strict dollar limits and source restrictions on contributions that individuals and 

other entities can give to national, state, and local party committees for the purpose of influencing a federal election. The premise behind 

these restrictions has been, and continues to 

be, that contributions to a federal candidate’s 

party in aid of that candidate’s campaign 

threaten to create—no less than would a direct 

contribution to the candidate—a sense of obligation. This is particularly true of contributions to national parties, with which federal 

candidates and officeholders enjoy a special relationship and unity of interest. 

540 U.S. at 144-145 (citation omitted). 

These concerns led the Buckley Court to conclude 

that, absent aggregate contribution limits, large contributions to parties would threaten corruption of candi-
23 

dates. Buckley’s concerns are no less real today. Then, 

as now, a contribution to a party earmarked to benefit a 

particular candidate was treated as a contribution to 

that candidate, and was subject to the limit on individual contributions to that candidate. See Buckley, 424 

U.S. at 24; 2 U.S.C. § 441a(a)(8). Nonetheless, the difficulty of policing against tacit understandings that a 

large party contribution would be spent to support a 

particular candidate led the Court to conclude that 

large, “unearmarked” contributions created a sufficient 

threat of corruption to justify the “modest” restriction 

imposed by aggregate limits. Buckley, 424 U.S. at 38 

(emphasis added). 

The Court in Colorado II similarly explained that 

the earmarking rule “would reach only the most clumsy 

attempts to pass contributions through to candidates.” 

533 U.S. at 462. The prospect that large donations to 

parties may be targeted to benefit particular candidates is fostered not only by the parties’ ability to 

transfer funds between committees at will and spend it 

to support their candidates, but also by the reality of 

“actual political conditions”: 

Donations are made to a party by contributors 

who favor the party’s candidates in races that 

affect them; donors are (of course) permitted to 

express their views and preferences to party 

officials; and the party is permitted (as we have 

held it must be) to spend money in its own 

right. When this is the environment for contributions going into a general party treasury, 

and candidate-fundraisers are rewarded with 

something less obvious than dollar-for-dollar 

pass-throughs (distributed through contributions and party spending), circumvention [of 
24 

contribution limits] is obviously very hard to 

trace. 

Id. 

Past experience provides ample evidence that candidates and party committees at both the national and 

state levels will work together to ensure that funds are 

spent for the donor’s targeted purposes. In Colorado 

II, this Court cited evidence that “[d]onors give to the 

party with the tacit understanding that the favored 

candidate will benefit,” and indeed that “the frequency 

of the practice and the volume of money involved” necessitated an “informal bookkeeping” system for tracking desired beneficiaries, known as “tallying.” 533 U.S. 

at 458, 459. The McConnell Court likewise concluded 

that donors often made large donations to parties accompanied by requests that they be “credited to particular candidates, and the parties obliged, irrespective 

of whether the funds were hard or soft.” 540 U.S. at 

146. 

Moreover, as discussed above, “[n]ational party 

committees often teamed with individual candidates’ 

campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party’s higher contribution limits while 

still allowing donors to give to their preferred candidate.” McConnell, 540 U.S. at 93. And “national parties often made substantial transfers of soft money to 

‘state and local political parties ... that in fact ultimately benefit[ed] federal candidates because the funds for 

all practical purposes remain[ed] under the control of 

the national committees.’” Id. at 131. In short, there is 

every reason to think that if contributors are permitted 

to give a large aggregate amount to multiple party 

committees and candidates, they will be able to direct 
25 

those funds to the benefit of specific candidates and officeholders they wish to obligate, circumventing base 

limits and creating the potential for both corruption 

and its appearance. 

3. Appellants contend that the aggregate limits 

no longer serve an anti-corruption purpose because the 

limits on contributions to individual party committees—which appellants do not challenge here—now 

preclude “huge” contributions. See McCutcheon Br. 40-

43; RNC Br. 19-24. But absent the aggregate limits 

challenged here, a contributor seeking to assist a single 

candidate could give a total of $194,400 per election cycle to the three national party committees. The contributor could also directly contribute an additional 

$5,200 per election cycle to that candidate (assuming 

both a primary and general election campaign), for a 

combined total of nearly $200,000. 

Appellant RNC asserts (at 42) that such a contribution is not “huge,” although it is almost four times the 

median annual income of U.S. households and exceeds 

the annual salaries of all members of the Senate and 

House of Representatives except the Speaker of the 

House.11 Congress, having made the judgment that 

contributions of greater than $5,200 posed a risk of corruption, could permissibly determine that contributions 

nearly 40 times larger to national party committees 

could similarly pose a risk of corruption. As this Court 

has recognized, it has “‘no scalpel to probe’ each possi-

 11 See U.S. Census Bureau, State & County QuickFacts, 

http://quickfacts.census.gov/qfd/states/00000.html (last visited July 

25, 2013); Brudnick, Congressional Research Service, Congressional Salaries and Allowances 10 (2013), available at http://www. 

senate.gov/CRSReports/crs-publish.cfm?pid='0E%2C*PL%5B%3 

D%23P%20%20%0A. 
26 

ble contribution level” and “cannot determine with any 

degree of exactitude the precise restriction necessary 

to carry out the statute’s legitimate objectives.” Randall, 548 U.S. at 248 (opinion of Breyer, J.). Congress’s 

judgment that the size of the national party contributions that would be allowed if the aggregate limits were 

lifted would pose a threat of corruption should not be 

overturned on the basis of a subjective judgment that 

$200,000 is not “huge” enough. 

Moreover, appellants do not dispute Congress’s 

judgment that donations to national party committees 

above the base limit present a significant threat of corruption. But if a contribution to one national party 

committee exceeding $64,800 per election cycle poses 

enough of a threat of corruption to justify setting the 

limit for contributions to the committee at that level, a 

significant additional contribution to another related 

national party committee that could immediately turn 

the money over to the first committee poses just as 

much of a threat. Because the national party committees are all instruments of a single political enterprise—the party—it makes perfect sense for the aggregate limit for all party committees to be very close 

to the level of the limit for a single party committee. A 

contribution to one committee is, functionally, little different from a contribution to all of them (or, put another way, to the “national party” as a unified entity). 

In any event, focusing solely on the national party 

committees misses more than half the point of the aggregate limits on party and political committee contributions. Given appellants’ position that the aggregate 

limits for both national and state party committees 

must stand or fall together, their insistence (RNC Br. 

42 n.33) that this Court should disregard the effect of 
27 

abrogating aggregate limits on state as well as national 

party committees is nonsensical. Absent the aggregate 

limit, a contributor would be able to give the party of 

his or her favored candidate not only the $194,400 per 

election cycle that would be allowed for the national 

party committees, but also another $1,000,000 per election cycle for federal campaign purposes to all of the 

party’s state committees. All of that money could then 

be rerouted by the party to a committee that would 

spend it to advance the prospects of a particular candidate. Cf. McConnell, 540 U.S. at 156 (explaining that 

national party effectively retained control over funds 

held by state party). Such a contribution would be 

“huge” by any realistic measure, and certainly large 

enough to pose what Congress could legitimately judge 

to be a threat of corruption. 

4. Permitting the parties and their candidates to 

solicit and receive contributions of millions of dollars 

from individual donors would again foster the appearance that our officeholders and our government are for 

sale. That is the judgment Congress expressed in enacting aggregate limits, and the Court “must give 

weight to attempts by Congress to seek to dispel either 

the appearance or the reality of [improper] influences” 

as long as the remedies chosen by Congress “comply 

with the First Amendment.” Citizens United, 558 U.S. 

at 361. Here, Congress has enacted remedies long recognized by this Court as complying with the First 

Amendment: limits on campaign contributions. Setting 

aside those carefully constructed limits, which respect 

the important interests of candidates and political parties as well as the critical need to prevent the corrupting influence of extremely large contributions, would 

indeed threaten to “cause the electorate to lose faith in 

our democracy.” Id. at 360. 
28 

This Court must not countenance, let alone bring 

about, that result. 

CONCLUSION 

The judgment of the district court should be affirmed. 

Respectfully submitted. 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, NW 

Washington, DC 20009 

FRED WERTHEIMER

DEMOCRACY 21 

2000 Massachusetts Ave., NW 

Washington, DC 20036 

DONALD J. SIMON

SONOSKY, CHAMBERS, 

 SACHSE, ENDRESON

 & PERRY, LLP

1425 K Street, NW 

Suite 600 

Washington, DC 20005 

SETH P. WAXMAN

 Counsel of Record

RANDOLPH D. MOSS

WEILI J. SHAW

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Ave., NW 

Washington, DC 20006 

(202) 663-6800 

seth.waxman@wilmerhale.com 

ROGER M. WITTEN

WILMER CUTLER PICKERING

 HALE AND DORR LLP

7 World Trade Center 

New York, NY 10007

JULY 2013