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Shaun Mccutcheon, et al v. Federal Election Commission

September 28, 2012


The opinion of the court was delivered by: Brown, Circuit Judge:

Before: BROWN, Circuit Judge; WILKINS, District Judge; and BOASBERG, District Judge.


Congress enacted the Federal Elections Campaign Act of 1971 (FECA) to "promote fair practices in the conduct of election campaigns for Federal political offices." Pub. L. No. 92-225, preamble, 86 Stat. 3, 3 (1972). Since 1972, the law has changed significantly. The current iteration of FECA imposes contribution limits stratified to track both the identity of the contributor and the identity of the receiver. Individuals, however, cannot necessarily contribute as much as they might wish within these limits; they, and only they, must comply with a second regulatory tier: a set of aggregate contribution limits. 2 U.S.C. § 441a(a)(3). Plaintiffs Shaun McCutcheon and the Republican National Committee ("RNC") now challenge these aggregate limits as unconstitutional. We reject their challenge.


A. Legal Background

In 1974, Congress amended FECA to prohibit persons from contributing more than $1,000 to any political candidate, individuals from contributing more than an aggregate of $25,000 in any calendar year, and political committees from contributing more than $5,000 to any political candidate. FECA Amendments of 1974 § 101, Pub. L. No. 93-443, 88 Stat. 1263, 1263. The Supreme Court ultimately upheld these contribution limits in the face of a First Amendment challenge, though it struck down FECA's expenditure limits. Buckley v. Valeo, 424 U.S. 1, 58 (1976) (per curiam) (summarizing holdings). A few months after the Buckley Court handed down its decision, Congress amended the FECA to distinguish (1) between contributions by persons and contributions by multicandidate political committees, and (2) among contributions to candidates and their authorized committees, contributions to national political party committees, and contributions to all other political committees. FECA Amendments of 1976 §§ 111, 201, Pub. L. No. 94-283, 90 Stat. 475, 486-87. Congress left the $25,000 aggregate limit on individuals' contributions untouched, however, until the Bipartisan Campaign Reform Act of 2002 ("BCRA"), which replaced the $25,000 aggregate limit with the bifurcated limiting scheme that Plaintiffs now challenge. Section 307, Pub. L. No. 107-155, 116 Stat. 81, 102-03. There are thus two sets of contribution limits: base limits calibrated to the identity of the contributor regulating how much the contributor may give to specified categories of recipients, and a set of aggregate limits regulating the total amount an individual may contribute in any two-year election cycle. Some (but not all) of these limits are periodically indexed for inflation. See 2 U.S.C. § 441a(c).

The default base limits apply to contributions by "persons," that is, individuals, partnerships, committees, associations, corporations, unions, and other organizations. See 2 U.S.C. 431(11) (defining "person"). FECA currently prohibits persons from contributing more than $2,500 per election to any given candidate or that candidate's agent or authorized committee; more than $30,800 in any calendar year to each of a national political party's national committee, House campaign committee, and Senate campaign committee; more than $10,000 in any calendar year to a state party political committee; and more than $5,000 in any calendar year to any other political committee. 2 U.S.C. § 441a(a)(1); 11 C.F.R. § 110.1(b)-(d); 76 Fed. Reg. 8,368, 8,370 (Feb. 14, 2011) (indexing for inflation).

These base contribution limits do not limit how much a contributor can contribute as long as the contributions remain within the limits for each recipient. Under the base contribution limits, for example, an individual might contribute $3.5 million to one party and its affiliated committees in a single election cycle.*fn1 The aggregate limits prevent this. During each two-year period starting in an odd-numbered year, no individual may contribute more than an aggregate of $46,200 to candidates and their authorized committees or more than $70,800 to anyone else. 2 U.S.C. § 441a(a)(3); 76 Fed. Reg. at 8,370. Of that $70,800, no more than $46,200 may be contributions to political committees that are not national political party committees. 2 U.S.C. § 441a(a)(3); 76 Fed. Reg. at 8,370. These aggregate limits, which amount to a total biennial limit of $117,000, 11 C.F.R. § 110.5(b); 76 Fed. Reg. at 8,370, thus prevent individuals from contributing the statutory maximum to more than eighteen candidates.

FECA includes a number of provisions designed to prevent evasion of the various limits. First, anyone who contributes more than permitted may be subject to civil or criminal penalties. 2 U.S.C. § 437g(a), (d). Second, indirect contributions, such as earmarked contributions to an intermediary, are deemed contributions to that candidate. 2 U.S.C. § 441a(a)(8). Third, FECA prohibits contributions made in the name of someone else. 2 U.S.C. § 441f. Finally, contributions made or received by more than one "affiliated" committee are deemed to have been made or received by the same committee. 2 U.S.C. § 441a(a)(5); 11 C.F.R. §§ 100.5(g), 110.3.

B. Factual and Procedural Background

McCutcheon is an Alabama resident eligible to vote in a U.S. presidential election. Thus far, during the 2011-2012 election cycle, he has contributed a total of $33,088 to sixteen different candidates in amounts ranging from $1,776 to $2,500 per election; $1,776 to each of the RNC, the National Republican Senatorial Committee ("NRSC"), and the National Republican Congressional Committee ("NRCC"); $2,000 to a nonparty political committee (the Senate Conservatives Fund); and $20,000 to the federal account of a state party committee (the Alabama Republican Party). McCutcheon, however, wants to contribute more. He wants to contribute $1,776 to twelve other candidates and enough money to the RNC, NRSC, and NRCC to bring his total contributions up to $25,000 each. Doing either of these, however, would violate the aggregate limits: the additional candidate contributions would amount to aggregate candidate contributions of $54,400, and the additional party committee contributions would amount to aggregate contributions of $75,000 to national party committees. McCutcheon assures us he intends to repeat these donation patterns during future election cycles.

The RNC, meanwhile, wishes to receive contributions from individuals like McCutcheon that would be permissible under the base limits but violate the aggregate limit on contributions to party committees. Because of the aggregate limit, the RNC has both refused and returned contributions. The RNC believes that others would contribute to the RNC but for the limit. According to the verified complaint, the RNC does not control either the NRSC or the NRCC.

Plaintiffs challenge both the $46,200 aggregate limit on candidate contributions and the $70,800 aggregate limit on other contributions under the First Amendment. They challenge the $46,200 aggregate limit for being "unsupported by any cognizable government interest . . . at any level of review" and for being unconstitutionally low. They challenge the $70,800 aggregate limit facially, as applied to contributions up to $30,800 per calendar year to national party committees, and for being too low, both facially and as applied to contributions to national party committees. Plaintiffs also ask this Court for a preliminary injunction to enjoin Federal ...

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