No. 12-536

IN THE

FILE[)

JUL 2 k 2013

SHAUN MCCUTCHEON, et al.,Appellants,

V.

FEDERAL ELECTION COMMISSION,Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICTCOURT FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICI CURIAEREPRESENTATIVES CHRIS VAN HOLLEN AND

DAVID PRICE IN SUPPORT OF APPELI~E

SCOTT L. NELSONPUBLIC CITIZEN

LITIGATION GROUP1600 20th Street, NWWashington, DC 20009

FRED WERTHEIMERDEMOCRACY 212000 Massachusetts Ave., NWWashington, DC 20036

DONALD J. SIMONSONOSKY, CHAMBERS,

SACHSE, ENDRESON& PERRY, LLP

1425 K Street, NWSuite 600Washington, DC 20005

SETH P. WAXMANCounsel of Record

RANDOLPH D. MOSS

WEILI J. SHAW

WILMER CUTLER PICKERING

HALE AND DORR LLP1875 Pennsylvania Ave., NWWashington, DC 20006(202) 663-6800seth.waxman@wilmerhale.com

ROGER M. WITTENWILMER CUTLER PICKERING

HALE AND DORR LLP7 World Trade CenterNew York, NY 10007

ii

TABLE OF CONTENTSPage

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

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

INTRODUCTION AND SUMMARY OF AR-GUMENT ......................................................................2

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

I. THE AGGREGATE CONTRIBUTION LIMITSAT ISSUE IN THIS CASE ARE JUST THAT--CONTRIBUTION LIMITS--AND MUST BEJUDGED ACCORDINGLY ................................................4

II. THE AGGREGATE CONTRIBUTION LIMITSARE CLOSELY DRAWN To COUNTER REALTHREATS OF CORRUPTION ........................................11

A. This Court Has Consistently Recog-nized That Contribution Limits ServeThe Important Interests Of PreventingCorruption, The Appearance Of Cor-ruption, And Circumvention .............................11

B. Aggregate Contribution Limits Pre-vent Fundraising Practices That CarryInherent Risks Of Corruption And Cir-cumvention ...........................................................12

CONCLUSION .................................................................28

ooo111

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona Free Enterprise Club’s Freedom ClubPAC 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 CampaignCommittee v. FEC, 518 U.S. 604 (1996) ..................20

FEC v. Beaumont, 539 U.S. 146 (2003) ..........3, 4, 7, 9, 10FEC v. Colorado Republican Federal Cam-

paign 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, 616F.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

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TABLE OF .aUTHORITIES--Continued

Page(s)

Republican National Committee v. FEC, 130S. Ct. 3544 (2010) ....................................................7, 22

Republican National Committee v. FEC, 698F. 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 (4thCir. 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, 2U.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 vsFEC, 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 Ser-vice, Congressional Salaries and Allow-ances (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 ExpenditureLimits, http://www.fec.gov/info/charts_441ad_2013.shtml (last visited July 24,2013) .............................................................................20

FEC, 2012 Coordinated Party ExpenditureLimits, http://www.fec.gov/info/charts_441ad_2012.shtml (last visited July 24,2013) .............................................................................20

Knott, Alex, Politicians Create Record Num-ber of Joint Fundraising Committees, RollCall (Sept. 17, 2010), http://www.rollcalhcom/news/-49934-1.html?pg= 1 ..................................18

Team Boehner, Contribute, https://www.geticontribute.com/teamboehner (last vis-ited July 24, 2013) .......................................................17

U.S. Census Bureau, State & County Quick-Facts, http://quickfacts.census.gov/qfd/states/00000.html (last visited July 25,2013) .............................................................................25

INTEREST OF AMICI CURIAE~

Chris Van Hollen is the United States Representa-tive for the Eighth Congressional District of the Stateof Maryland and the ranking Democrat on the HouseBudget Committee. From 2007 to 2011, Representa-tive Van Hollen also served as Chairman of the Demo-cratic Congressional Campaign Committee.

David Price is the United States Representativefor the Fourth Congressional District of the State ofNorth Carolina. He serves on the House Appropria-tions Committee and is the ranking Democrat on theHomeland Security Appropriations Subcommittee.

As federal officeholders, candidates, and leaders oftheir political party, amici are directly affected by theaggregate contribution limits at issue in this case.Amici believe strongly in the necessity of recognizingthe crucial role that political parties play in our systemof democratic representative government. At the sametime, they recognize the critical importance of limits oncontributions to political parties and candidates in pre-serving our system against the reality and appearanceof corruption. Aggregate limits on contributions areessential to achieving the latter goal while fully ac-commodating the former. Amici submit this brief be-cause they believe that their perspective may be of as-sistance to the Court as it considers the issues in thiscase.

1 Written consents to the filing of this amicus brief have beenfiled with the Clerk of the Court. No counsel for a party authoredthis brief in whole or in part, and no person other than amici ortheir counsel made a monetary contribution to the preparation orsubmission of this brief.

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INTRODUCTION AND SUMMARY OF ARGUMENT

This case starkly poses the question whether thecompetition for the massive individual contributionsthat would be permitted without aggregate contribu-tion limits would threaten to create the reality or ap-pearance of corruption. This Court’s decisions leave nodoubt that the answer is yes. Striking down these lim-its would create obvious possibilities for even the mostblatant forms of corruption: solicitations for hundredsof thousands or millions of dollars, creating the oppor-tunity for transactions exchanging contributions for an-ticipated political favors from officeholders. Whilethere may be disagreement about the precise bounda-ries of corruption and its appearance, it has long beensettled that such arrangements, at least, fall within itscore.

Unlike expenditure limits, contribution limits im-pose "only a marginal restriction upon the contributor’sability to" communicate, and are thus subject to a lessdemanding standard of review. Buckley v. Valeo, 424U.S. 1, 20 (1976) (per curiam). Here, the aggregate con-tribution limits that Congress enacted serve the im-portant interest in curtailing actual and apparent cor-ruption. Absent those limits, extremely large contribu-tions to party committees and affiliated candidateswould directly threaten to foster the reality or appear-ance of corrupt arrangements resulting in officeholdersbeholden to their large financial backers.

In particular, elimination of aggregate limits wouldallow candidates and officeholders to use joint fundrais-ing committees to solicit six- and seven-figure dona-tions from single donors. Regardless of the use towhich the contributions were ultimately put, suchtransactions would create the opportunity for, and the

appearance of, the most blatant forms of quid quo procorruption.

Large donations to parties and affiliated candi-dates, moreover, benefit candidates in ways likely tofoster corruption directly as well as through the cir-cumvention of the base candidate contribution limitsthat are the most fundamental check on corruption.Parties and their candidates are part of a common polit-ical enterprise with shared interests. Party committeescan freely transfer money among themselves and spendit in a variety of ways that directly benefit candidates.Because experience demonstrates that parties and do-nors find ways to target funds for particular candidatesthat prohibitions on "earmarking" can neither detectnor prevent, eliminating aggregate limits would enabledonors to give massive donations with the expectationthat they would be spent to support particular candi-dates. And, even when those very large donationswere used to support the party more broadly, theywould still have been provided in response to solicita-tions from the candidates and officeholders who makeup the party and its leadership. Either way, such inflat-ed donations would result in officeholders and partyleaders beholden to their extraordinary financial pa-trons.

The important-indeed, compelling--governmentalinterest in preventing actual or apparent corruptionprovided ample basis to uphold individual and aggre-gate 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 banin McConnell v. FEC, 540 U.S. 93, 132-189 (2003), andit provides more than sufficient basis to uphold the ag-gregate contribution limits at issue here.

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ARGUMENT

I. THE AGGREGATE CONTRIBUTION LIMITS AT ISSUE INTHIS CASE ARE JUST THAT--CONTRIBUTION Ln~rrs--AND MUST BE JUDGED ACCORDINGLY

A foundational principle of this Court’s moderncampaign finance precedent is the distinction betweenlimits on expenditures and limits on contributions. See,e.g., Buckley v. Valeo, 424 U.S. 1, 19-22 (1976) (per cu-riam); McConnell v. FEC, 540 U.S. 93, 120, 137 (2003),overruled in other part by Citizens United v. FEC, 558U.S. 310 (2010). Under the approach consistently ap-plied by this Court, contribution limits are not subjectto the same strict scrutiny as expenditure limits. In-stead, contribution limits are constitutional so long asthey are ’"closely drawn’ to serve a ’sufficiently im-portant interest.’" Arizona Free Enter. Club’s Free-dom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011).As the Court explained in Buckley, unlike "a limitationupon expenditures for political expression, a limitationupon the amount that any one person or group maycontribute to a candidate or political committee entailsonly a marginal restriction upon the contributor’s abil-ity to engage in free communications." 424 U.S. at 20-21. Accordingly, the courts have long applied a "lessrigorous standard of review" to contribution limits.McConnell, 540 U.S. at 137.

The significance of this distinction is borne out bythis Court’s holdings. Although the Court has at timesstruck down expenditure limits, see, e.g., Citizens Unit-ed, 558 U.S. at 365-366; Buckley, 424 U.S. at 58-59, ithas uniformly upheld federal statutory limits on contri-butions to candidates, political parties, and politicalcommittees, see McConnell, 540 U.S. at 142-185; FECv. Beaumont, 539 U.S. 146, 149 (2003); FEC v. Colora-

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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.~- As this Court explained in Citizens United, "con-tribution limits, ... unlike limits on independent ex-penditures, have been an accepted means to prevent ...corruption." 558 U.S. at 359 (citation omitted).

This distinction stems from fundamental differ-ences between the two types of restrictions. The Courthas subjected expenditure limits to strict scrutiny be-cause they are direct restrictions on speech. See Citi-zens United, 558 U.S. at 339; see also FEC v. Wiscon-sin Right To Life, Inc., 551 U.S. 449, 464 (2007) (opinionof Roberts, C.J.). Thus, the Court has described limitson campaign expenditures as "direct and substantialrestraints on the quantity of political speech" that "lim-it political expression ’at the core of our electoral pro-cess and of ... First Amendment freedoms,’" Buckley,424 U.S. at 39, and it has applied a correspondinglystringent standard of review.

By contrast, the Court has long emphasized thatbecause "the transformation of contributions into polit-ical debate involves speech by someone other than thecontributor," contribution limits "entail[] only a mar-ginal restriction" on speech:

A limitation on the amount of money a personmay give to a candidate or campaign organiza-

2 The only case in which this Court has struck down a contri-bution limit is Randall v. Sorrell, 548 U.S. 230 (2006), which struckdown state contribution limits of as little as $200 per two-year cy-cle on the grounds that they effectively "prevent[ed] challengersfrom mounting effective campaigns against incumbent officehold-ers." Id. at 249 (opinion of Breyer, J.). Appellants have raised nosuch concern here.

6

tion thus involves little direct restraint on hispolitical communication, for it permits thesymbolic expression of support evidenced by acontribution but does not in any way infringethe contributor’s freedom to discuss candidatesand issues. While contributions may result inpolitical expression if spent by a candidate oran association to present views to the voters,the transformation of contributions into politi-cal debate involves speech by someone otherthan the contributor.

Buckley, 424 U.S. at 20, 21. Moreover, "[t]he quantityof communication by the contributor does not increaseperceptibly with the size of his contribution, since theexpression rests solely on the undifferentiated, symbol-ic act of contributing." Id. at 21 (emphasis added). Ac-cordingly, "contribution limits impose serious burdenson free speech only if they are so low as to ’preven[t]candidates and political committees from amassing theresources necessary for effective advocacy."’McConnell, 540 U.S. at 135 (emphases added).

Contributions can also be a means of exercising as-sociational rights because they can "serve[] to affiliate aperson with a candidate." Buckley, 424 U.S. at 22.However, a contributor’s ability to associate with acandidate or organization is not fundamentally alteredbased on the size of the contribution. And althoughcontributions "enable[] like-minded persons to pooltheir resources in furtherance of common politicalgoals," the burden of contribution limits is limited be-cause they still "allow associations ’to aggregate largesums of money to promote effective advocacy.’"McConnell, 540 U.S. at 136. A contribution limit willthus be sustained if it is ’"closely drawn’ to match a ’suf-

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ficiently important interest.’" Beaumont, 539 U.S. at162 (quoting Nixon v. Shrink Mo. Gov’t PAC, 528 U.S.377, 387-388 (2000)).

The Court’s opinions have consistently adhered tothis understanding of contributions. Thus, in Beau-mont, the Court reiterated that "[g]oing back to Buck-ley v. Valeo, restrictions on political contributions havebeen treated as merely ’marginal’ speech restrictionssubject to relatively complaisant review under theFirst Amendment, because contributions lie closer tothe edges than to the core of political expression." 539U.S. at 161 (citation omitted). The Court made exactlythe same point in McConnell, again emphasizing "thelimited burdens [contribution restrictions] impose onFirst Amendment freedoms" and "adhering to theanalysis of contribution limits that the Court has con-sistently followed since Buckley was decided." 540 U.S.at 136, 137-138. In Citizens United, the Court againpreserved what the Chief Justice referred to as "thecareful line that Buckley drew to distinguish limits oncontributions to candidates from limits on independentexpenditures 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. at281-282, 284-285 (Souter, J., dissenting) (same). And inRepublican National Committee v. FEC, 130 S. Ct.3544 (2010), the Court summarily affirmed the holdingof a three-judge district court that limits on contribu-tions to national, state, and local political party commit-tees remain subject to less rigorous scrutiny than ex-penditure limits, and are constitutional when subjectedto that scrutiny. See Republican Nat’l Comm. v. FEC,698 F. Supp. 2d 150, 156 (D.D.C. 2010).

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As this Court recognized in Buckley, aggregatecontribution limits are subject to the same level of scru-tiny as base contribution limits. 424 U.S. at 38. Aggre-gate contribution limits implicate the same interests asdo other contribution limits the Court has sustained,and there is accordingly no reason to apply a differentstandard of review. Indeed, because aggregate limits,if anything, operate less directly to affect a contribu-toffs ability to associate with any particular candidateor committee, they also implicate First Amendmentconcerns less directly.

Appellants rightly do not contend that the aggre-gate contribution limits at issue here prevent themfrom directly expending money on speech, as did theexpenditure limits struck down in Buckley and CitizensUnited. See California Med. Ass’n, 453 U.S. at 196(holding that contributing funds to a political committeedoes not turn the committee’s speech into the contribu-tor’s for First Amendment purposes). Of course, a con-tribution involves speech to the extent it serves as a"symbolic expression of support." Buckley, 424 U.S. at21. But the aggregate limits at issue here do not pre-vent contributors from making that symbolic expres-sion with respect to as many candidates as they wish.Instead, the aggregate limits affect only the size of suchcontributions, which has little significance to the speechright: As this Court has explained, the quantity of ex-pression "does not increase perceptibly" with theamount of the contribution. Id. The aggregate limits atissue here therefore burden speech no differently thanthose upheld in this Court’s previous cases.

Nor do the aggregate limits burden association in adifferent manner than other contribution limits sus-tained by this Court. McCutcheon concedes (at 25) that

aggregate limits do not directly restrict how many can-didates contributors may associate with through con-tributions, but he protests that the aggregate limitsmay prevent giving the legal maximum to each candi-date. But meaningful association does not require max-imal support. And even if an aggregate limit imposessome theoretical outside limit on the number of candi-dates, parties, and political committees with whom acontributor can associate, the same was true of the$25,000 aggregate limit at issue in Buckley. 424 U.S. at38. The Court nonetheless applied the same level ofscrutiny to "this quite modest restraint upon protectedpolitical activity" as to the other contribution limits itsustained. Id. To the extent the aggregate limits herediffer from the lower limit sustained in Buckley interms of the number of candidates and organizationsthat can be supported, and the level of support al-lowed, those are merely differences in degree. "Suchdistinctions in degree become significant only whenthey 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 varydepending on whether it is restricted on an aggregateor per-recipient basis, and it is the nature of the activi-ty restricted that determines the level of scrutiny.Beaumont, 539 U.S. at 162. In Beaumont, the Courtupheld the longstanding statutory prohibition on corpo-rate contributions--a prohibition far stricter than theaggregate 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 underthe Buckley standard as applied in Beaumont), cert. denied, 133 S.Ct. 1459 (2013); Ognibene v. Parkes, 671 F.3d 174, 194-197 (2d Cir.

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mont held that the nature of the activity affected bythe prohibition at issue in that case--contributing mon-ey to candidates, parties, and political committees--was the same as the activity affected by a contributionlimit and hence bore the same relationship to FirstAmendment interests. Id. at 161-162. And because, inturn, "the level of scrutiny is based on the importanceof the ’political activity at issue’ to effective speech orpolitical association," id. at 161, the same standard ofreview applied to the contribution prohibition inBeaumont as to the contribution limits in Buckley.

The limits at issue here apply to activity of exactlythe same nature: Aggregate contribution limits limitcontributions. The First Amendment interests theyaffect are the same interests affected by any other limiton contributions. The constitutional standard againstwhich they must be judged is accordingly the one appli-cable to contributions. See McConnell, 540 U.S. at 139(declining to apply strict scrutiny because the provi-sions at issue did not "burden[] speech" differentlyfrom any other contribution limit).

2011) (applying Buckley standard to uphold ban on contributionsby non-corporate entities), cert. denied, 133 S. Ct. 28 (2012); Pres-ton v. Leake, 660 F.3d 726, 732-735 (4th Cir. 2011) (applying Buck-ley standard to uphold ban on contributions by lobbyists); GreenParty of Conn. v. Garfield, 616 F.3d 189, 198-199 (2d Cir. 2010)(applying Buckley standard to bans on contributions by govern-merit contractors and lobbyists), cert. denied, 131 S. Ct. 3090(2011).

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IX. THE AGGREGATE CONTRIBUTION LIMITS ARE CLOSELY

DRAWN TO COUNTER REAL THREATS OF CORRUPTION

A. This Court Has Consistently Recognized ThatContribution Limits Serve The Important In-terests Of Preventing Corruption, The Ap-pearance Of Corruption, And Circumvention

In every case in which this Court has consideredfederal contribution limits, it has upheld those limitsbecause they serve an interest the Court has alwaysdeemed sufficiently important to justify campaign fi-nance regulation: preventing corruption and the ap-pearance of corruption. Very large political contribu-tions create both the risk that officeholders and poten-tial officeholders will be tempted to forsake their publicduties and the opportunity for corrupt bargains. Theythus threaten to foster both actual corruption and, whatmay be just as damaging, its appearance. Buckley, 424U.S. at 26-27; accord Citizens United, 558 U.S. at 345,356-357.

These justifications suffice even though corruptbargains would otherwise be illegal, both because thedifficulty of unearthing and proving their existencemeans that "the scope of such pernicious practices cannever be reliably ascertained," Citizens United, 558U.S. at 356 (quoting Buckley, 424 U.S. at 27), and be-cause "public awareness of the opportunities for abuseinherent in a regime of large individual financial contri-butions" may otherwise erode ’"confidence in the sys-tem of representative Government ... to a disastrousextent,"’ Buckley, 424 U.S. at 27 (emphasis added).

The government’s anti-corruption interest is "suffi-cient 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

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U.S. at 456 ("[A]ll members of the Court agree that cir-cumvention is a valid theory of corruption."). Thus,Buckley upheld an aggregate contribution limit be-cause it prevented donors from circumventing the baselimits and "contribut[ing] massive amounts of money toa particular candidate through the use of unearmarkedcontributions to political committees likely to contrib-ute to that candidate, or huge contributions to the can-didate’s political party." 424 U.S. at 38. "The limited,additional restriction on associational freedom imposedby the overall ceiling [was] thus no more than a corol-lary of the basic individual contribution limitation thatwe have found to be constitutionally valid." Id.

B. Aggregate Contribution Limits Prevent Fund-raising Practices That Carry Inherent RisksOf Corruption And Circumvention

The aggregate contribution limits at issue here arelikewise constitutional because they prevent a varietyof fundraising practices that raise the precise concernsthis Court has previously held to justify contributionlimits.

1. Absent aggregate contribution limits, candi-dates and officeholders would be permitted to solicitmassive donations to their parties and fellow candi-dates, explicitly and directly from their donors. Candi-dates and officeholders are allowed to solicit any con-tributions that "are subject to the limitations, prohibi-tions, and reporting requirements of" the Federal Elec-tion Campaign Act of 1971 (FECA), 2 U.S.C. §§ 431 etseq. 2 U.S.C. § 441i(e)(1)(A). And candidates and par-ties often create joint fundraising committees to re-ceive combined contributions from a single donor to beallocated, up to the applicable per-contribution limitsfor the relevant election cycles, to as many national,

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state, and local party committees and candidates aspossible. Without aggregate limits, such practiceswould easily allow candidates and officeholders to solic-it and receive contributions that substantially exceed$1 million.

¯ Congressional leaders could form a joint fund-raising committee soliciting the maximum con-tributions per cycle for their two national partycampaign committees4 ($64,800 each, for a totalof $129,600), as well as the maximum per-cyclecontributions for 435 House and 33 Senate can-didates ($5,200 each, for a total of $2,433,600).The committee could solicit and receiveamounts totaling $2,563,200 from a single do-nor.5

¯ A party’s national leaders could join forces tosolicit the maximum contributions per cycle forall three national party committees ($64,800each, for a total of $194,400), all state partycommittees ($20,000 each, for a total of$1,000,000), and the party’s presidential candi-date and each of its House and Senate candi-dates ($5,200 each, for a total of $2,438,800).The grand total: $3,633,200.

¯ Presidential candidates (or candidates for otherfederal offices) and their parties could solicitthe maximum contributions per cycle for their

4 Those committees are the National Republican Senatorial

Committee and the National Republican Congressional Commit-tee, and the Democratic Senatorial Campaign Committee and theDemocratic Congressional Campaign Committee.

5 Current contribution limits are collected in the govern-

ment’s brief (at 9-10).

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own campaign committees ($5,200), plus themaximum for the national party committees($64,800 each, for a total of $194,400), plus themaximum for state party committees ($20,000each, for a total of $1,000,000). The totalamount such a candidate or committee could so-licit from a single donor would be $1,199,600.

As this Court recognized in McConnell, the pro-spect of candidates soliciting and receiving multi-million dollar checks from donors creates both the riskof corruption and the appearance of corruption. To besure, these funds might not all be expended directly onthe candidate’s own campaign. But this Court has notrequired a direct financial benefit to the candidate’sown campaign committee to recognize the potential forcorruption or its appearance when a contributor makesa large donation at a candidate’s request. It is enoughthat the contribution benefits the party and its candi-dates, directly satisfying the request. Thus, inMcConnell, seven Justices held that solicitation of verylarge contributions for national parties presented cor-ruption concerns regardless of how those contributionswere ultimately used. As the majority observed:

Large ... donations [to parties or other organi-zations] at a candidate’s or officeholder’s behestgive rise to all of the same corruption concernsposed by contributions made directly to thecandidate or officeholder. Though the candi-date may not ultimately control how the fundsare spent, the value of the donation to the can-didate or officeholder is evident from the fact ofthe solicitation itself.

McConnell, 540 U.S. at 182. Justice Kennedy, joinedby Chief Justice Rehnquist, agreed, explaining that

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"regulation of a candidate’s solicitation of funds" "fur-thers a constitutionally sufficient" anti-corruption in-terest, even "if the funds are given to another," because"[t]he making of a solicited gift is a quid both to the re-cipient of the money and to the one who solicits thepayment (by granting his request)." Id. at 308 (Kenne-dy, J., concurring in judgment in part and dissenting inpart). Thus, limiting the amounts candidates may raisefor their parties, as well as other party candidates andorganizations, "satisfies Buckley’s anticorruption ra-tionale and the First Amendment’s guarantee." Id.

McConnell also recognized more generally that"large ... contributions to national parties are likely tocreate actual or apparent indebtedness on the part offederal officeholders, regardless of how those funds areultimately used." 540 U.S. at 155. That candidates andofficeholders may be obligated by contributions to theirparty, or to other candidates, is not surprising. "Thenational committees of the two major parties are bothrun by, and largely composed of, federal officeholdersand candidates." Id. Those officeholders are tasked insignificant part with raising money for the party and itscandidates, and their future prospects for leadershipposts and even electoral success are influenced by howwell they perform that role. Cf. id. at 156 (citing evi-dence that ’"political parties[] control the resourcescrucial to subsequent electoral success and legislativepower’" and that "officeholders’ reelection prospectsare significantly influenced by attitudes of party lead-ership"). The electoral successes of the candidate’s par-ty, moreover, dictate whether the candidate, if elected,will serve in the majority or the minority in Congress.Such officeholders therefore stand to benefit from con-tributions to the party both directly, through party

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spending, and indirectly, through their success at fund-raising for and electing other candidates.

Eliminating FECA’s aggregate limits on party andcandidate contributions would effectively negate theinterests served by the soft-money solicitation ban up-held in McConnell by once again allowing candidatesand officeholders to seek extremely large contributionsto benefit themselves, their parties, and their politicalallies. Past experience provides every reason to be-lieve that parties and candidates would take advantageof this opportunity. During the soft-money period,when limits on contributions to political parties werebypassed through contributions not covered by FECA(because they were supposedly not for federal electionpurposes), the parties and their officeholders estab-lished joint fundraising committees to solicit FECA-limited contributions to the candidates together withlimited hard-money or unlimited soft-money contribu-tions to party committees. In the 2000 elections, thelast in which soft-money contributions to the nationalparties were permitted, individual contributors mademore than 500 soft-money contributions to Democraticor Republican party committees of at least $100,000.6Several made contributions of at least $1 million. Thenumber of possible large donors today, and the amountsthey would be willing to contribute, would undoubtedlybe even higher, and if the parties and their candidateswere once more permitted to tap them for amounts ex-

6 The figures cited in the paragraph accompanying this foot-note and the two that follow were compiled by the Center for Re-sponsive Politics from FEC disclosure data. See Center for Re-sponsive Politics, McCutcheon vs FEC, http://www.opensecrets.org/overview/mccutcheon.php (last visited July 24, 2013).

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ceeding the current aggregate limits, they would cer-tainly do so.

This conclusion is confirmed by the fact that partiesand candidates have continued to operate joint fund-raising committees up to the limits permitted by thesoft-money ban and FECA’s aggregate limits. Thus, inthe 2012 presidential elections, both major-party presi-dential candidates operated joint fundraising commit-tees called, respectively, the Obama Victory Fund andRomney Victory, which sought both contributions tothe candidates’ campaign committees and the maximumcontributions to party committees permissible underthe applicable aggregate limits ($70,800 for the 2012election cycle). Hundreds of donors responded: 721donors made maximum party contributions throughRomney Victory, while 536 hit the party aggregatecaps through the Obama Victory Fund. If the presi-dential candidates had been able to ask for contribu-tions exceeding half a million dollars per year for allparty committees in conjunction with their own cam-paign committees--as they would have absent aggre-gate limits--they would undoubtedly have done so.And donors would almost certainly have respondedwith six-figure contributions.~

7 Such joint fundraising committees are not limited to presi-dential candidates. For example, House Speaker John Boehneroperates "a joint fundraising committee composed of Friends ofJohn Boehner ..., the National Republican Congressional Commit-tee ..., THE FREEDOM PROJECT ... and the Ohio RepublicanParty State Central & Executive Committee," which accepts do-nations from individuals of more than ten times the maximum con-tribution an individual could make to the candidate directly. TeamBoehner, Contribute, https://www.geticontribute.com/teamboehner(last visited July 24, 2013).

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All told, more than 1(/00 donors gave the maximumpermitted amount to committees of the major parties inthe 2012 election cycle, accounting for well over $100million in contributions.8 Almost 600 reached the ag-gregate limit on contributions to federal candidates.These figures indicate the extent to which the existinglimits provide scope for substantial contributions bythose who are in a position to, and choose to, makethem. But they also starkly reveal the potential forcandidates and officeholders to solicit far larger contri-butions if allowed to do so.

2. For the reasons described above, the govern-ment has a strong anti-corruption interest in prevent-ing the massive combined contributions that would oc-cur absent aggregate limits, even where those fundswere not ultimately spent directly to support a target-ed candidate. But, in practice, it is likely that partiesand candidates would find ways to ensure that largecontributions were spent on behalf of those candidatesthe contributors sought to obligate, exacerbating theproblem. Candidates, political parties, and their associ-ated committees have substantial freedom to transferfunds to each other, and to spend them to support can-

Similarly, in 2010, California Senator Barbara Boxer operateda variety of joint fundraising committees, joining forces with theDemocratic National Committee, the Democratic Senatorial Cam-paign Committee, the California Democratic Party, and other fed-eral candidates to solicit amounts supporting her reelection thatsignificantly exceeded the limit on direct contributions to her cam-paign committee. See Knott, Politicians Create Record Number ofJoint Fundraising Committees, Roll Call (Sept. 17, 2010),http://www.rollcall.com/news/-49934-1.html?pg=l.

8 This number includes donors who gave through the presi-dential candidates’ joint fundraising committees as well as otherswho did not.

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didates of their choosing, making it possible to targetcontributions and to circumvent the base limits on con-tributions to candidates.

This potential for corruption and its appearance ex-ists because federal campaign finance law quite appro-priately recognizes the important role of political par-ties in our system and fosters their relationship withtheir candidates. Ironically, when the current aggre-gate limits that appellants target were established inthe Bipartisan Campaign Reform Act of 2002 (BCRA),Pub. L. No. 107-155, 116 Stat. 81, they reflected sub-stantial increases designed to ensure that although par-ties would henceforth be limited to "hard-money" con-tributions (i.e., those subject to FECA’s limits), theparties’ fundraising and their relationship to their can-didates would not be handicapped. Prior to BCRA’senactment, contributions to national party committeeswere limited to $20,000 per year, subject to the $25,000aggregate limit that had remained unchanged since thetime of Buckley. BCRA significantly increased the lim-its on contributions to each national party committeeand provided for the first time that they would be in-dexed for inflation. BCRA also substantially increasedthe overall aggregate limit, indexed it to inflation, andcreated sub-aggregate limits within it so that contribu-tions to candidates and parties no longer applied to-ward the same limit.

In addition to benefiting from these very high con-tribution limits, the political parties have the freedomto transfer unlimited amounts of the funds they raiseamong their national, state, and local party committees.2 U.S.C. § 441a(a)(4). Thus, the parties may divide anddirect their financial resources as they see fit. Partycommittees may make substantial expenditures of the-

2O

se funds in coordination with their candidates--~omjust below $100,000 to over $2.5 million for Senate can-didates (depending on the population of the state),nearly $50,000 for most candidates for the House ofRepresentatives,9 and well over $20 million for candi-dates for the Presidency.1° In addition, the parties maymake unlimited non-coordinated expenditures in sup-port of their candidates. See McConnell, 540 U.S. at213-219 (invalidating BCRA provision that requiredparties to choose between engaging in limited coordi-nated spending and unlimited coordinated spending);see also Colorado Republican Fed. Campaign Comm.v. FEC, 518 U.S. 604 (1996) (Colorado/) (holding thatFirst Amendment prohibits restriction on parties’ non-coordinated spending). Candidates may also contributefunds from their own campaign committees to othercandidates (subject to FECA contribution limits, see 2U.S.C. § 432(e)(3)(B)), and they may make unlimitedtransfers of their campaign committee funds to nationaland state party committees, which can then use them to

9 A higher limit, equal to that of the limit applicable to Senatecandidates in the least populous states, applies for House candi-dates who campaign statewide in those same states because theyhave only one United States Representative.

lo See FEC, 2013 Coordinated Party Expenditure Limits,

http://www.fec.gov/info/charts_441ad_2013.shtml (last visited July24, 2013); FEC, 2012 Coordinated Party Expenditure Limits,http://www.fec.gov/info/charts_441ad_2012.shtml (last visited July24, 2013). The limits on coordinated spending for House and Sen-ate races apply separately to the national party committees andstate party committees in the relevant state. A state party com-mittee can assign its spending right to the national party commit-tee, or vice versa, thereby doubling the coordinated spending bythe party committee. See 11 C.F.R. § 109.33.

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support other party candidates through coordinated ornon-coordinated expenditures.

These features of our campaign finance laws, as en-acted by Congress and interpreted and limited by thisCourt, reflect the central importance of political partiesto our country’s electoral process. As this Court hasstated:

The formation of national political parties wasalmost concurrent with the formation of theRepublic itself. Consistent with this tradition,the Court has recognized that the FirstAmendment protects "the freedom to join to-gether in furtherance of common political be-liefs[.]"

California Democratic Party v. Jones, 530 U.S. 567,574 (2000) (citation omitted) (quoting Tashjian v. Re-publican Party of Conn., 479 U.S. 208, 214 (1986)). Bypermitting the parties, their leaders, and their candi-dates to work together to wage effective political cam-paigns, the campaign finance laws foster these im-portant interests. And by allowing candidates and of-ficeholders to participate in the work of their parties bysoliciting lawful contributions for other candidates andparty organizations subject to applicable limits, thelaws avoid unduly circumscribing First Amendmentrights. 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 narrowlytailored to satisfy First Amendment requirements.").

At the same time, the close relationships among theparties and their candidates and officeholders, togetherwith the features of the campaign finance laws de-scribed above, create obvious potential means for fos-tering corruption and its appearance. As this Court has

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recognized, political parties, in addition to their manypositive functions in fostering an effective and competi-tive representative democracy, may also serve as"agents for spending on behalf of those who seek toproduce obligated officeholders" and "conduits for con-tributions meant to place candidates under obligation."Colorado II, 533 U.S. at 452.

McConnell, upholding the ban on party soft-moneycontributions that was recently summarily reaffirmedby this Court in Republican National Committee, 130S. Ct. 3544, explained:

The idea that large contributions to a nationalparty can corrupt or, at the very least, createthe appearance of corruption of federal candi-dates and officeholders is neither novel nor im-plausible. For nearly 30 years, FECA hasplaced strict dollar limits and source re-strictions on contributions that individuals andother entities can give to national, state, and lo-cal party committees for the purpose of influ-encing a federal election. The premise behindthese restrictions has been, and continues tobe, that contributions to a federal candidate’sparty in aid of that candidate’s campaignthreaten to create--no less than would a directcontribution to the candidate--a sense of obli-gation. This is particularly true of contribu-tions to national parties, with which federalcandidates and officeholders enjoy a special re-lationship and unity of interest.

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

These concerns led the Buckley Court to concludethat, absent aggregate contribution limits, large contri-butions to parties would threaten corruption of candi-

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dates. Buckley’s concerns are no less real today. Then,as now, a contribution to a party earmarked to benefit aparticular candidate was treated as a contribution tothat candidate, and was subject to the limit on individ-ual contributions to that candidate. See Buckley, 424U.S. at 24; 2 U.S.C. § 441a(a)(8). Nonetheless, the diffi-culty of policing against tacit understandings that alarge party contribution would be spent to support aparticular candidate led the Court to conclude thatlarge, "unearmarked" contributions created a sufficientthreat of corruption to justify the "modest" restrictionimposed by aggregate limits. Buckley, 424 U.S. at 38(emphasis added).

The Court in Colorado H similarly explained thatthe earmarking rule "would reach only the most clumsyattempts to pass contributions through to candidates."533 U.S. at 462. The prospect that large donations toparties may be targeted to benefit particular candi-dates is fostered not only by the parties’ ability totransfer funds between committees at will and spend itto support their candidates, but also by the reality of"actual political conditions":

Donations are made to a party by contributorswho favor the party’s candidates in races thataffect them; donors are (of course) permitted toexpress their views and preferences to partyofficials; and the party is permitted (as we haveheld it must be) to spend money in its ownright. When this is the environment for contri-butions going into a general party treasury,and candidate-fundraisers are rewarded withsomething less obvious than dollar-for-dollarpass-throughs (distributed through contribu-tions and party spending), circumvention [of

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do

contribution limits] is obviously very hard totrace.

Past experience provides ample evidence that can-didates and party committees at both the national andstate levels will work together to ensure that funds arespent for the donor’s targeted purposes. In ColoradoH, this Court cited evidence that "[d]onors give to theparty with the tacit understanding that the favoredcandidate will benefit," and indeed that "the frequencyof the practice and the volume of money involved" ne-cessitated an "informal bookkeeping" system for track-ing desired beneficiaries, known as "tallying." 533 U.S.at 458, 459. The McConnell Court likewise concludedthat donors often made large donations to parties ac-companied by requests that they be "credited to par-ticular candidates, and the parties obliged, irrespectiveof whether the funds were hard or soft." 540 U.S. at146.

Moreover, as discussed above, "[n]ational partycommittees often teamed with individual candidates’campaign committees to create joint fundraising com-mittees, which enabled the candidates to take ad-vantage of the party’s higher contribution limits whilestill allowing donors to give to their preferred candi-date." McConnell, 540 U.S. at 93. And "national par-ties often made substantial transfers of soft money to’state and local political parties ... that in fact ultimate-ly benefit[ed] federal candidates because the funds forall practical purposes remain[ed] under the control ofthe national committees.’" Id. at 131. In short, there isevery reason to think that if contributors are permittedto give a large aggregate amount to multiple partycommittees and candidates, they will be able to direct

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those funds to the benefit of specific candidates and of-ficeholders they wish to obligate, circumventing baselimits and creating the potential for both corruptionand its appearance.

3. Appellants contend that the aggregate limitsno longer serve an anti-corruption purpose because thelimits on contributions to individual party commit-tees--which appellants do not challenge here--nowpreclude "huge" contributions. See McCutcheon Br. 40-43; RNC Br. 19-24. But absent the aggregate limitschallenged here, a contributor seeking to assist a singlecandidate could give a total of $194,400 per election cy-cle to the three national party committees. The con-tributor could also directly contribute an additional$5,200 per election cycle to that candidate (assumingboth a primary and general election campaign), for acombined total of nearly $200,000.

Appellant RNC asserts (at 42) that such a contribu-tion is not "huge," although it is almost four times themedian annual income of U.S. households and exceedsthe annual salaries of all members of the Senate andHouse of Representatives except the Speaker of theHouse.1~ Congress, having made the judgment thatcontributions of greater than $5,200 posed a risk of cor-ruption, could permissibly determine that contributionsnearly 40 times larger to national party committeescould similarly pose a risk of corruption. As this Courthas recognized, it has ’"no scalpel to probe’ each possi-

~ See U.S. Census Bureau, State & County QuickFacts,http://quickfacts.census.gov/qfd/states/00000.html (last visited July25, 2013); Brudnick, Congressional Research Service, Congres-sional Salaries and Allowances 10 (2013), available at http://www.senate.gov/CRSReports/crs-publish.cfm?pid=’0E %2C*PL%5B%3D%23P%20%20%0A.

26

ble contribution level" and "cannot determine with anydegree of exactitude the precise restriction necessaryto carry out the statute’s legitimate objectives." Ran-dall, 548 U.S. at 248 (opinion of Breyer, J.). Congress’sjudgment that the size of the national party contribu-tions that would be allowed if the aggregate limits werelifted would pose a threat of corruption should not beoverturned on the basis of a subjective judgment that$200,000 is not "huge" enough.

Moreover, appellants do not dispute Congress’sjudgment that donations to national party committeesabove the base limit present a significant threat of cor-ruption. But if a contribution to one national partycommittee exceeding $64,800 per election cycle posesenough of a threat of corruption to justify setting thelimit for contributions to the committee at that level, asignificant additional contribution to another relatednational party committee that could immediately turnthe money over to the first committee poses just asmuch of a threat. Because the national party commit-tees are all instruments of a single political enter-prise--the party--it makes perfect sense for the ag-gregate limit for all party committees to be very closeto the level of the limit for a single party committee. Acontribution to one committee is, functionally, little dif-ferent from a contribution to all of them (or, put anoth-er way, to the "national party" as a unified entity).

In any event, focusing solely on the national partycommittees misses more than half the point of the ag-gregate limits on party and political committee contri-butions. Given appellants’ position that the aggregatelimits for both national and state party committeesmust 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 nationalparty committees is nonsensical. Absent the aggregatelimit, a contributor would be able to give the party ofhis or her favored candidate not only the $194,400 perelection cycle that would be allowed for the nationalparty committees, but also another $1,000,000 per elec-tion cycle for federal campaign purposes to all of theparty’s state committees. All of that money could thenbe rerouted by the party to a committee that wouldspend it to advance the prospects of a particular candi-date. Cf. McConnell, 540 U.S. at 156 (explaining thatnational party effectively retained control over fundsheld by state party). Such a contribution would be"huge" by any realistic measure, and certainly largeenough to pose what Congress could legitimately judgeto be a threat of corruption.

4. Permitting the parties and their candidates tosolicit and receive contributions of millions of dollarsfrom individual donors would again foster the appear-ance that our officeholders and our government are forsale. That is the judgment Congress expressed in en-acting aggregate limits, and the Court "must giveweight to attempts by Congress to seek to dispel eitherthe appearance or the reality of [improper] influences"as long as the remedies chosen by Congress "complywith the First Amendment." Citizens United, 558 U.S.at 361. Here, Congress has enacted remedies long rec-ognized by this Court as complying with the FirstAmendment: limits on campaign contributions. Settingaside those carefully constructed limits, which respectthe important interests of candidates and political par-ties as well as the critical need to prevent the corrupt-ing influence of extremely large contributions, wouldindeed threaten to "cause the electorate to lose faith inour democracy." Id. at 360.

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This Court must not countenance,about, that result.

CONCLUSION

The judgment of the district courtfirmed.

let alone bring

should be af-

Respectfully submitted.

SCOTT L. NELSONPUBLIC CITIZEN

LITIGATION GROUP1600 20th Street, NWWashington, DC 20009

FRED WERTHEIMER

DEMOCRACY 212000 Massachusetts Ave., NWWashington, DC 20036

DONALD J. SIMONSONOSKY, CHAMBERS,

SACHSE, ENDRESON& PERRY, LLP

1425 K Street, NWSuite 600Washington, DC 20005

SETH P. WAXMAN

Counsel of RecordRANDOLPH D. MOSSWEILI J. SHAWWILMER CUTLER PICKERING

HALE AND DORR LLP1875 Pennsylvania Ave., NWWashington, DC 20006(202) 663-6800seth.waxman@wilmerhale.com

ROGER M. WITTENWILMER CUTLER PICKERING

HALE AND DORR LLP7 World Trade CenterNew York, NY 10007

JULY 2013