MCCUTCHEON et al v. FEDERAL ELECTION COMMISSION

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090-2979152) filed by SHAUN MCCUTCHEON, REPUBLICAN NATIONAL COMMITTEE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons upon FEC, # 3 Summons upon Attorney General, # 4 Summons upon US Attorney)(Backer, Dan)

United States District Court
District of Columbia
Shaun McCutcheon
5011 Lake Crest Circle
Birmingham, AL 35226
Republican National Committee
310 First Street, SE
Washington, D.C. 20003,
Plaintiffs

Civil Case No.

v.
Federal Election Commission
999 E Street, NW
Washington, DC 20463,

THREE-JUDGE COURT REQUESTED

Defendant

Verified Complaint for Declaratory and Injunctive Relief
Plaintiffs McCutcheon and Republican National Committee (“RNC”) complain as follows:

Introduction
1. This is a First Amendment constitutional challenge to the individual aggregate biennial
contribution limits at 2 U.S.C. § 441a(a)(3) (set out infra ¶ 14), including challenges to
a.

the limits on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B), as
applied to contributions to national party committees and facially, and

b.

the limit on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(A).

2. The biennial contribution limits were enacted as § 307(b) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 (2002), which repealed the old
ceiling of $25,000 for an individual’s overall contributions in a year (with non-election-year contributions treated as received in the following election year) in § 315(a)(3) of the Federal Election

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Campaign Act of 1971 (“FECA”) and replaced it with multiple limits.
3. Because Plaintiffs elect the judicial-review provision provided by BCRA § 403, see infra
¶ 4, “[i]t shall be the duty of the United States District Court for the District of Columbia and the
Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of this action and appeal.” BCRA § 403(a)(4) and (d)(2).
4. In relevant part, BCRA § 403, 116 Stat. at 113-14, provides as follows:
SEC. 403. JUDICIAL REVIEW.
(a) SPECIAL RULES FOR ACTIONS BROUGHT ON CONSTITUTIONAL
GROUNDS.—If any action is brought for declaratory or injunctive relief to challenge the
constitutionality of any provision of this Act or any amendment made by this Act, the following rules shall apply:
(1) The action shall be filed in the United States District Court for the District of
Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of
title 28, United States Code.
(2) A copy of the complaint shall be delivered promptly to the Clerk of the
House of Representatives and the Secretary of the Senate.
(3) A final decision in the action shall be reviewable only by appeal directly to
the Supreme Court of the United States. Such appeal shall be taken by the filing of a
notice of appeal within 10 days, and the filing of a jurisdictional statement within 30
days, of the entry of the final decision.
(4) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to
expedite to the greatest possible extent the disposition of the action and appeal.
(b) . . . .
(c) . . . .
(d) APPLICABILITY.—
(1) INITIAL CLAIMS.— . . . .
(2) SUBSEQUENT ACTIONS.—With respect to any action initially filed after
December 31, 2006, the provisions of subsection (a) shall not apply to any action described in such section unless the person filing such action elects such provisions to
apply to the action.
5. In a brochure titled The Biennial Contribution Limit, the Federal Election Commission
(“FEC”) describes the biennial contribution limits as follows, though with a non-statutory overall
limit of $117,000 (see infra ¶¶ 15-16, 21):

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As an individual, you are subject to a biennial limit on contributions made to federal
candidates, party committees and political action committees (PACs). The limit is in effect for a two-year period beginning January 1st of the odd-numbered year and ending on
December 31st of the even-numbered year. 11 CFR 110.5.
The biennial limit is indexed for inflation in odd-numbered years. The 2011-12 limit
is $117,000. This limit includes up to:
• $46,200 in contributions to candidate committees; and
• $70,800 in contributions to any other committees, of which no more than
$46,200 of this amount may be given to committees that are not national party
committees. 11 CFR 110.5(b)(1).
The Commission announces the amount of the adjusted overall limit in the Federal
Register. 11 CFR 110.5(b)(4).
Moreover, within this biennial limit on total contributions, an individual may not exceed the specific limits placed on contributions to different types of committees, as illustrated in the contribution limits chart later in this brochure.
* * *
Individual Limits for 2011-2012
Recipient Federal Committee

Limit

Candidate Committee

$2,500* per candidate, per election [FN5]

National Party Committee

$30,800* per calendar year

State, Local & District Party Committee

$10,000 per calendar year (combined
limit)[FN6]

Political Action Committee

$5,000 per calendar year

* These contribution limits are indexed for inflation in odd-numbered years. The Commission announces the amount of the adjusted contribution limits in the Federal Register
and on the FEC web site.
* * *
____________
[FN5] A primary, runoff and general are each considered separate elections.
[FN6] Because local party committees are presumed to be affiliated with the party’s
state committee, a contribution to a local party committee counts against the contributor’s
limit for the state party. 11 CFR 110.3(b)(3).
FEC, The Biennial Contribution Limit (revised 2011) (available at http://fec.gov/pages/brochures/biennial_limit_brochure.pdf) (footnotes omitted). See also “Price Index Adjustments for
Contribution and Expenditure Limits and Lobbyist Bundling Disclosure Threshold,” 76 Fed.

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Reg. 8368, 8369 (Feb. 14, 2011) (“2011 Price Index Adjustments”).
6. Regarding terminology, Plaintiffs here follow the FEC’s use of “candidate committee,”
“national party committee,” and “political action committee” (“PAC”). See FEC, The Biennial
Contribution Limit. “Candidate committee” includes “candidate” because candidates (except for
Vice President) must designate a principal campaign committee (and may designate additional
authorized political committees), see 11 C.F.R. § 101.1(a)-(b), and receive any contributions as
agents of their authorized committee(s), see 11 C.F.R. § 101.2. The cited brochure uses “state,
local & district party committee,” but “state party committee” will be used here to include local
and district party committees, unless context contraindicates, because all share a $10,000 per calendar year combined limit. Plaintiffs do not follow the FEC’s use of “biennial contribution limit”
to refer to all limits at 2 U.S.C. § 441a(a)(3) because the statute contains multiple limits: (1) a
limit (currently $46,200) on contributions to candidate committees, (2) a limit (currently
$70,800) on contributions to all non-candidate committees (i.e., national party committees, state
party committee, and PACs) , and (3) a sub-limit (currently $46,200) of the latter limit on contributions to non-candidate, non-national-party committees (i.e., state party committees or PACs).
Instead, Plaintiffs refer to the limits collectively as “biennial contribution limits” or to a specific
“biennial contribution limit.” See infra ¶¶ 15-16, 21.

Jurisdiction and Venue
7. This Court has jurisdiction over this First Amendment challenge under 28 U.S.C. § 1331
and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02.
8. This Court also has jurisdiction under the judicial-review provisions of BCRA § 403, 116
Stat. at 113-14, see supra ¶ 4, which apply to “any action . . . brought for declaratory or injunctive relief to challenge the constitutionality of any provision of [BCRA] or any amendment made
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by [BCRA],” BCRA § 403(a), 116 Stat. at 113-14, because Plaintiffs “elect[] such provisions to
apply to this action,” BCRA § 403(d)(2), 116 Stat. at 114. BCRA § 403 provides for a threejudge court and direct appeal to the United States Supreme Court.
9. In the alternative, should this Court find that it lacks jurisdiction under BCRA § 403,
Plaintiffs invoke the FECA judicial-review provision, 2 U.S.C. § 437h, which provides that “the
national committee of any political party[] or any individual eligible to vote in an election for the
office of President may institute actions . . . to construe the constitutionality of any provision of
[FECA],” and “[t]he district court immediately shall certify all questions of constitutionality of
[FECA] to the United States court of appeals for the circuit involved, which shall hear the matter
sitting en banc.”
10. Venue is proper under 28 U.S.C. § 1391(e) and BCRA § 403, 116 Stat. at 113-14.

Parties
11. Plaintiff Shaun McCutcheon is a United States citizen and a resident of the State of Alabama. He is eligible to vote in an election for the office of the President of the United States.
12. Plaintiff RNC “ha[s] the general management of the Republican Party, based upon the
rules adopted by the Republican National Convention.” Rules of the Republican Party at Rule 1
(as adopted by the 2008 Republican National Convention; amended in 2010 by RNC) (available
at http://www.gop.com/images/legal/2008_RULES_Adopted.pdf). RNC is a “national committee,” which “by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Commission.” 2 U.S.C.
§ 431(14). RNC is a “political committee[] established and maintained by a national political
party” under 2 U.S.C. § 441a(a)(1)(B) and (3)(B), i.e., it is a national party committee.
13. FEC is the government agency with enforcement authority over FECA and BCRA.
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Other Facts
The Individual Biennial Contribution Limits
14. The biennial contribution limits were enacted as BCRA § 307(b), 116 Stat. at 102-03,
which repealed FECA § 315(a)(3), the $25,000 limit on individual contributions (in a two-year
period), and replaced it with two new separate biennial contribution limits (one with a sub-limit),
codified as follows (2011-12 inflation-adjusted amounts in brackets):
(3) During the period which begins on January 1 of an odd-numbered year and ends
on December 31 of the next even-numbered year, no individual may make contributions
aggregating more than—
(A) $37,500 [$46,200], in the case of contributions to candidates and the authorized
committees of candidates;
(B) $57,500 [$70,800], in the case of any other contributions, of which not more than
$37,500 [$46,200] may be attributable to contributions to political committees which are
not political committees of national political parties.
2 U.S.C. § 441a(a)(3).
15. The FEC implemented the BCRA biennial contribution limits statute with the following
regulation (2011-12 inflation-adjusted amounts in brackets), which imposes an overall limit of
$117,000 (currently) that is not in the statute (but is the sum of the statutory limits on contributions to candidate committees and non-candidate committees):
§ 110.5 Aggregate biennial contribution limitation for individuals (2 U.S.C.
441a(a)(3)).
(a) Scope. This section applies to all contributions made by any individual, except
individuals prohibited from making contributions under 11 CFR 110.20 and 11 CFR part
115.
(b) Biennial limitations. (1) In the two-year period beginning on January 1 of an
odd-numbered year and ending on December 31 of the next even-numbered year, no individual shall make contributions aggregating more than $95,000 [$117,000], including no
more than:
(i) $37,500 [$46,200] in the case of contributions to candidates and the authorized
committees of candidates; and
(ii) $57,500 [$70,800] in the case of any other contributions, of which not more than
$37,500 [$46,200] may be attributable to contributions to political committees that are not
political committees of any national political parties.
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(2) [Reserved]
(3) The contribution limitations in paragraph (b)(1) of this section shall be increased
by the percent difference in the price index in accordance with 11 CFR 110.17. The increased contribution limitations shall be in effect for the two calendar years starting on
January 1 of the year in which the contribution limitations are increased.
(4) In every odd-numbered year, the Commission will publish in the Federal Register
the amount of the contribution limitations in effect and place such information on the
Commission’s Web site.
11 C.F.R. § 110.5 (a)-(b).
16. Though the FEC sometimes refers to the biennial contribution limits at 2 U.S.C.
§ 441a(a)(3) as the biennial contribution limit (see supra ¶ 5), there are actually limits on contributions to candidate committees and non-candidate committees, with the latter limit containing a
sub-limit on contributions to non-national-party committees (i.e., state party committees and
PACs). The singular use of “limit” derives from the FEC’s creation of an overarching limit (currently $117,000) that is not in the statute.
17. As a result of the biennial contribution limits, individuals are unable to contribute to the
full extent permitted by the base contribution limits at 2 U.S.C. § 441a(a)(1). Thus, though an
individual currently may contribute $2,500 per election to a candidate committee under the base
contribution limit at 2 U.S.C. § 441a(a)(1)(A), the individual is limited in the number of candidate committees to which the individual may contribute in this amount by the $46,200 (currently)
biennial limit on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(A).
18. Though an individual currently may contribute $30,800 per year to any national party
committee, $10,000 per year to any state party committee, and $5,000 per year to any PAC under
the base contribution limits at 2 U.S.C. § 441a(a)(1)(B)-(D), the individual is limited in the number of such committees to which the individual may contribute by the $70,800 (currently) biennial limit on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B).

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19. As applied just to national party committees, though an individual may contribute
$30,800 per year to any national party committee under the base contribution limit at 2 U.S.C.
§ 441a(a)(1)(B), an individual wishing to contribute $30,800 each, for example, to RNC, the National Republican Senatorial Committee (“NRSC”), and the National Republican Congressional
Committee (“NRCC”) in a year (totaling $92,400) or a biennium (totaling $184,800) may not
contribute those amounts because of the $70,800 biennial limit on contributions to non-candidate
committees.
20. Though an individual may contribute $5,000 per year to a PAC and $10,000 per year to a
state party committee, 2 U.S.C. § 441a(a)(1)(C)-(D), the biennial sub-limit on contributions to
these non-candidate, non-national-party committees is $46,200 (currently), 2 U.S.C.
§ 441a(a)(3)(B), and, as noted, such contributions count against the $70,800 (currently) biennial
limit on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B).
21. All contributions—to candidate committees, national party committees, and non-candidate, non-national-party committees—count against the FEC’s overall $117,000 (currently) biennial contribution limit at 11 C.F.R. § 110.5(b). But to the extent the underlying statutory limits
(of which $117,000 is a sum) are unconstitutional, this limit is without statutory authority.

Shaun McCutcheon
22. Shaun McCutcheon is an individual with deeply held principles regarding government
and public policy. He believes that the United States is slowly but surely losing its character as an
exceptional nation that stands for liberty and limited government under the Constitution.
McCutcheon is deeply concerned about the direction of policy in this country, which for decades—in his view—has been marked by steady increases in the power of the federal government
over the lives of individuals and the autonomy of states and communities, all in derogation of the
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principles contained in the Declaration of Independence and the Constitution. McCutcheon further believes that this slow creep toward consolidation of power in Washington has been brought
about by elected federal officials—presidents and members of Congress—who enact illconceived and overreaching laws.
23. Understanding that elected Federal officials have the power to pass legislation that may
either protect or trample liberty and constitutional principles, McCutcheon desires to make contributions to individual federal candidates, most of whom are challengers, who are interested in
advancing the cause of liberty. He seeks to pool his resources with like-minded individuals, and
signal his support of suitable candidates, by making financial contributions to the authorized
campaign committees of such candidates.
24. Mr. McCutcheon wants to contribute to candidates as described next—and is ready, willing, and able to do so—but he cannot do so fully because he is limited by the biennial contribution limit at 2 U.S.C. § 441a(a)(3)(A).
25. Mr. McCutcheon intends to fully comply with the base per-candidate, per-election limit
and plans to contribute, and in some cases already has contributed, $2,500 to each of three candidates for use in their primary elections, $2,500 to one of the same candidates for use in the general election, and $1,776 to 25 other candidates during the 2012 election cycle. Despite the fact
that all of his proposed contributions would be within the base limit, McCutcheon is prohibited
from supporting the candidates of his choosing with these contributions because of the biennial
contribution limit of $46,200 on contributions to candidate committees for the 2012 cycle. See 2
U.S.C. §§ 441a(a)(3)(A) and 441a(c). Because McCutcheon’s proposed contributions would exceed $46,200, his otherwise lawful speech and association is prohibited.
26. As of June 18, 2012, McCutcheon has made 16 contributions to candidate committees
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totaling $33,088, and he plans to make 12 more contributions to candidate committees totaling
$21,312, if legally permitted, for a grand total of $54,400 in candidate-committee contributions
this election cycle. See infra.
27. McCutcheon has already made the following contributions to 15 candidates during the
2012 election cycle (totaling $33,088):
a.

$5,000 total to Josh Mandel, a non-incumbent candidate for U.S. Senate from Ohio in
the 2012 election cycle ($2,500 for the primary and $2,500 for the general);

b.

$2,500 to Scott Beason, a non-incumbent candidate in the 6th Congressional District of
Alabama;

c.

$2,500 to Martha Roby, an incumbent office holder in the 2nd Congressional District of
Alabama;

d.

$1,776 to Brad Wenstrup, a non-incumbent candidate for Congress in the 2nd Congressional District of Ohio;

e.

$1,776 to Glenn Morton, a non-incumbent candidate for Congress in the 5th Congressional District of Maryland;

f.

$1,776 to Richard Mourdock, a non-incumbent candidate in the Republican primary for
U.S. Senate from Indiana;

g.

$1,776 to Ilario Pantano, a non-incumbent candidate for Congress in the 7th Congressional District of North Carolina;

h.

$1,776 to James Kuiken, a non-incumbent candidate for Congress in the 15th Congressional District of Texas;

i.

$1,776 to Sean Siebert, a non-incumbent candidate for Congress in the 18th Congressional District of Texas;

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j.

$1776 to James Engstrand, a non-incumbent candidate for Congress in the 36th Congressional District of Texas;

k.

$1,776 to Rick Tubbs, a non-incumbent candidate for Congress in the 3rd Congressional
District of California;

l.

$1,776 to Bob Dutton, a non-incumbent candidate for Congress in the 31st Congressional District of California;

m. $1,776 to Nick Poppaditch, a non-incumbent candidate for Congress in the 53rd Congressional District of California;
n.

$1,776 to Patrick Murray, a non-incumbent candidate for Congress in the 8th Congressional District of Virginia; and

o.

$1,776 to Chris Perkins, a non-incumbent candidate for Congress in the 11th Congressional District of Virginia.

p.

$1,776 to Markwayne Mullin, a non-incumbent candidate for Congress in the 2nd Congressional District of Oklahoma;

28. Mr. McCutcheon intends to make (if legally permitted) the following additional contributions to candidates in the 2012 election cycle, either to their respective primary election campaigns or general election campaigns (totaling $21,312):
a.

$1,776 to Joe Coors, a non-incumbent candidate for Congress in the 3rd Congressional
District of Colorado;

b.

$1,776 to Martha Zoller, a candidate in the Republican primary for the newly created
9th Congressional District of Georgia;

c.

$1,776 to Charles Djou, a non-incumbent candidate for Congress in the 1st Congressional District of Hawaii;

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d.

$1,776 to Chris Coutu, a non-incumbent candidate for Congress in the 2nd Congressional District of Connecticut;

e.

$1,776 to Brian K. Hill, a non-incumbent candidate in the Republican primary for U.S.
Senate from Connecticut;

f.

$1,776 to Ron DeSantis, a non-incumbent candidate for Congress in the 4th Congressional District of Florida;

g.

$1,776 to Evelio Otero, a non-incumbent candidate for Congress in the 11th Congressional District of Florida;

h.

$1,776 to Mark Oxner, a non-incumbent candidate for Congress in the 27th Congressional District of Florida;

i.

$1,776 to Dan Severson, a non-incumbent candidate in the Republican primary for U.S.
Senate from Minnesota;

j.

$1,776 to Mia Love, a non-incumbent candidate for Congress in the 4th Congressional
District of Utah;

k.

$1,776 to Dick Muri, a non-incumbent candidate for Congress in the 10th Congressional
District of Washington; and

l.

$1,776 Ray Boland, a non-incumbent candidate for Congress in the 3rd Congressional
District of Wisconsin.

29. Under 2 U.S.C. § 441a(a)(1)(A), as indexed for inflation for the 2012 election cycle, an
individual is limited to contributing $2,500 to any single federal candidate per election.
McCutcheon’s completed and planned contributions are all within this base contribution limit,
and most of them are well below the limit. Despite compliance with the base per-candidate limit
at 2 U.S.C. § 441a(a)(3)(A), McCutcheon is limited to contributing an aggregate $46,200 to all
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federal candidates in the 2012 election cycle.
30. The current unconstitutional prohibition on McCutcheon’s planned contributions at 2
U.S.C. § 441a(a)(3)(A) will force him to withhold support from candidates of his choice, as time
ticks away before the relevant primaries and the November general election.
31. If McCutcheon’s rights are not vindicated before these coming elections, he will forever
lose his right to political speech and association with respect to the candidates to whom he is unable to contribute before the elections. While McCutcheon will be forced to sit on the sidelines,
he will be unable to pool his resources with like-minded individuals and the candidates (most of
whom are challengers who do not enjoy the institutional benefits of incumbency) will be deprived of critical support during their campaigns.
32. During the 2013-2014 election cycle, McCutcheon intends to make multiple contributions to candidates, all of which will be within the applicable base per-candidate limit but which
will aggregate more than $60,000. In future elections, he intends to make contributions in like
amounts that will exceed the applicable biennial contribution limit.
33. Now and in the future, Mr. McCutcheon wants to exercise his core First Amendment
rights to free political speech and association by contributing to any and all candidate committees
of his choosing to the full extent permitted by the base contribution limit at 2 U.S.C.
§ 441a(a)(1)(A) without limitation by the biennial contribution limit at 2 U.S.C. § 441a(a)(3)(A).
34. Mr. McCutcheon is also ready, willing, and able to contribute $25,000 each to RNC,
NRSC, and NRCC, and wants to do so before the November general election but cannot because
he is limited by the $70,800 biennial contribution limit at 2 U.S.C. § 441a(a)(3)(B) on contributions to all non-candidate committees and the FEC’s overall $117,000 biennial contribution limit
at 11 C.F.R. § 110.5(b).
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35. As of June 18, 2012, Mr. McCutcheon has contributed $1776 each to RNC, NRSC, and
NRCC. He intends to make further contributions to these national party committees that will total
$25,000 each before the November general election if he obtains the judicial relief here sought.
He wishes and intends to contribute the same amount to RNC, NRSC, and NRCC at each time
that he makes contribution to them, rather than giving to them in differing amounts.
36. In addition to these contributions to RNC, NRSC, and NRCC, Mr. McCutcheon has to
date in this biennium made the following contributions to non-candidate federal committees:
a.

$2,000 to the Senate Conservatives Fund (the leadership PAC associated with Senator
Jim DeMint);

b.

$10,000 in 2011 to the federal account of the Alabama Republican Party (an additional
$17,625 was paid to the Alabama Republican Party’s state account through joint fundraising activity); and

c.

$10,000 in 2012 to the federal account of the Alabama Republican Party (an additional
$16,000 was paid to the Alabama Republican Party’s state account through joint fundraising activity).

37. Mr. McCutcheon’s contributions to non-candidate federal committees in this biennium
total $27,328, and, if he is permitted to exceed the $70,800 biennial limit by contributing
$25,000 each to RNC, NRSC, and NRCC, his total biennial contributions to non-candidate committees would total $97,000. Mr. McCutcheon has not, and will not earmark, these contributions
in any way.
38. Mr. McCutcheon wants to exercise his core First Amendment rights to free political
speech and association by contributing as he chooses to non-candidate committees in general,
and RNC and any other national committees in particular, now and in the future, to the full extent
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permitted by the base contribution limits at 2 U.S.C. § 441a(a)(1)(B)-(D) without limitation by
the unconstitutional biennial contribution limits at 2 U.S.C. § 441a(a)(3)(B).

RNC
39. RNC wants to receive the contributions that Shaun McCutcheon would make, now and
in the future, but for the biennial contribution limit.
40. RNC has had to refuse and/or refund contributions from other individuals that were permissible under the base contribution limit at 2 U.S.C. § 44a(a)(1)(B) but impermissible under the
biennial contribution limit at 2 U.S.C. § 441a(a)(3)(B). RNC believes that other contributors
would contribute to RNC but for the restriction of the biennial contribution limit, and it also
wants to receive contributions from those contributors. RNC “has standing to sue to vindicate the
political-speech rights of its contributors.” Wisconsin Right to Life PAC v. Barland, 664 F.3d
139, 148 (7th Cir. 2011) (collecting cases).
41. RNC wants to exercise its core First Amendment right to receive political speech and to
associate by receiving contributions from Mr. McCutcheon and others who would contribute, as
described in the foregoing paragraph, now and in the future, to the full extent permitted by the
base contribution limit at 2 U.S.C. § 441a(a)(1)(B) without limitation by the biennial contribution limit at 2 U.S.C. § 441a(a)(3)(B).
42. The FEC treats the three national party committees of a national political party—such as
RNC, NRSC, and NRCC—and “[t]he State committee of the same political party” as not being
affiliated for purposes of sharing contribution limits by providing that they do not share a limit
on contributions “made or received” as follows:
(b) Contribution limitations for political party committees. (1) For the purposes of
the contribution limitations of 11 CFR 110.1 and 110.2, all contributions made or received by the following political committees shall be considered to be made or received
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by separate political committees—
(i) The national committee of a political party and any political committees established, financed, maintained, or controlled by the same national committee; and
(ii) The State committee of the same political party.
(2) Application of paragraph (b)(1)(i) of this section means that—
(i) The House campaign committee and the national committee of a political party
shall have separate limitations on contributions under 11 CFR 110.1 and 110.2.
(ii) The Senate campaign committee and the national committee of a political party
shall have separate limitations on contributions, except that contributions to a senatorial
candidate made by the Senate campaign committee and the national committee of a political party are subject to a single contribution limitation under 11 CFR 110.2(e).
(3) All contributions made by the political committees established, financed, maintained, or controlled by a State party committee and by subordinate State party committees shall be presumed to be made by one political committee. . . .
11 C.F.R. § 110.3(b)(1)-(3).
43. RNC, NRSC, and NRCC are in fact distinct, with separate controlling officials and governing bodies and focusing on unique activities.
44. The RNC Chairman is Reince Priebus. See http://www.gop.com/index.php/issues/leadership/. RNC’s members are an elected committeeman, committeewoman, and state
chairman from each state Republican Party (“state” here includes territories and the District of
Columbia). See Rules of the Republican Party at Rule 1 (2008). The RNC officers are a chairman
and co-chairman elected by RNC, eight vice chairmen elected at regional caucuses of RNC members, and a secretary and treasurer elected by RNC (and any other officers that RNC deems necessary). Id. at Rule 5. RNC has an Executive Committee, made up of 28 officers and RNC members, to “exercise . . . executive and administrative functions . . . between meetings of the
[RNC]” (with certain exceptions). Id. at Rule 6. RNC focuses largely on presidential campaigns
and general party matters, along with supporting Republican candidates and promoting its issues,
which are available in the Republican Platform (2008) (available at http://www.gop.com/
2008Platform/2008platform.pdf).

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45. The NRSC Chairman is U.S. Senator John Cornyn. See http://www.nrsc.org/. “[NRSC] is
the only political committee solely dedicated to electing Republicans to the U.S. Senate. The
NRSC provides invaluable support and assistance to current and prospective Republican U.S.
Senate candidates in the areas of budget planning, election law compliance, fundraising, communications tools and messaging, research and strategy.” Id. “The NRSC was founded in 1916, as
the Republican Senatorial Campaign Committee, following the ratification of the 17th Amendment to the Constitution—which provided for the direct election of Senators. In 1948, the Committee reorganized and was renamed the National Republican Senatorial Committee.” See
http://www.nrsc.org/about-the-nrsc/. NRSC currently focuses especially on the issues of courts,
the economy, education, energy, health care, and national defense, its views on which are at
http://www.nrsc.org/about-the-nrsc/views-and-issues/.
46. The NRCC Chairman is U.S. Representative Pete Sessions. See http://www.nrcc.org/
about/About-NRCC/. “[NRCC] is a political committee devoted to maintaining and increasing
the 242-member Republican majority in the U.S. House of Representatives.” Id.
The NRCC’s origins date back to 1866, when the Republican caucuses of the House and
Senate formed a “Congressional Committee.” Today, the NRCC is organized under Section 527 of the Internal Revenue Code. It supports the election of Republicans to the
House through direct financial contributions to candidates and Republican Party organizations; technical and research assistance to Republican candidates and Party organizations;
voter registration, education and turnout programs; and other Party-building activities.
Id.
The NRCC is governed by its chairman, U.S. Rep. Pete Sessions (TX-32), and an executive committee composed of Republican members of the U.S. House of Representatives.
The Chairman is elected by the House Republican Conference after each Congressional election. Republican Leader John Boehner and the seven other elected leaders of the
Republican Conference of the House of Representatives serve as ex-officio members of
the NRCC’s executive committee.
The day-to-day operations of the NRCC are overseen by Executive Director Guy
Harrison, who manages a staff of professionals with expertise in campaign strategy develVerified Complaint

17

opment, planning and management, research, communications, fundraising, administration, and legal compliance.
Id.
47. RNC’s amended 2007 year-end report1 (FEC Form 3x, filed 02/08/2008) shows
$82,009,995 in contributions received from “Individuals/Persons Other Than Political Committees,” $0 in contributions from “Political Party Committees,” and $1,064,212 in contributions
from “Other Political Committees (such as PACs),” for total contributions received of
$83,074,207, of which refunded contributions totaled $148,988. The same report showed
$40,000 in “Contributions to Federal Candidates/Committees and Other Political Committees,”
$0 in independent expenditures, and $89,205 in “Coordinated Expenditures Made by Party Committees (2 U.S.C. 441a(d)).”
48. RNC’s amended 2008 year-end report (FEC Form 3x, filed 04/06/2009) shows
$201,926,681 in contributions received from “Individuals/Persons Other Than Political Committees,” $0 in contributions from “Political Party Committees,” and $1,111,071 in contributions
from “Other Political Committees (such as PACs),” for total contributions received of
$203,037,752, of which refunded contributions totaled $495,897. The same report showed
$484,495 in “Contributions to Federal Candidates/Committees and Other Political Committees”
(but with “Refunds of Contributions Made to Federal candidates and Other Political Committees” received totaling $425,148, so these net contributions made were $59,347), $53,459,388 in
independent expenditures, and $24,767,657 in “Coordinated Expenditures Made by Party Committees (2 U.S.C. 441a(d)).”
49. RNC’s amended 2009 year-end report (FEC Form 3x, filed 03/02/2010) shows
1

All of the reports referenced here and in the following paragraphs discussing reports are
reports to the FEC that are available at www.fec.gov, with numbers rounded to the nearest dollar.
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18

$80,850,039 in contributions received from “Individuals/Persons Other Than Political Committees,” $0 in contributions from “Political Party Committees,” and $491,050 in contributions from
“Other Political Committees (such as PACs),” for total contributions received of $81,341,089, of
which refunded contributions totaled $522,349. The same report showed $29,269 in “Contributions to Federal Candidates/Committees and Other Political Committees” (but with “Refunds of
Contributions Made to Federal candidates and Other Political Committees” received totaling
$452,511, so these net contributions were -$423,242), $0 in independent expenditures, and
$124,111 in “Coordinated Expenditures Made by Party Committees (2 U.S.C. 441a(d)).”
50. RNC’s amended 2010 year-end report (FEC Form 3x, filed 06/21/2011) shows
$85,688,364 in contributions received from “Individuals/Persons Other Than Political Committees,” $0 in contributions from “Political Party Committees,” and $414,759 in contributions from
“Other Political Committees (such as PACs),” for total contributions received of $86,103,122, of
which refunded contributions totaled $51,817. The same report showed $31,500 in “Contributions to Federal Candidates/Committees and Other Political Committees,” $0 in independent expenditures, and $936,644 in “Coordinated Expenditures Made by Party Committees (2 U.S.C.
441a(d)).”
51. RNC’s 2011 year-end report (FEC Form 3x, filed 1/31/2012) shows $80,687,824 in contributions received from “Individuals/Persons Other Than Political Committees,” $0 in contributions from “Political Party Committees,” and $1,524,476 in contributions from “Other Political
Committees (such as PACs),” for total contributions received of $82,212,300, of which refunded
contributions totaled $99,815. The same report showed $10,000 in “Contributions to Federal
Candidates/Committees and Other Political Committees,” $0 in independent expenditures, and
$1,723 in “Coordinated Expenditures Made by Party Committees (2 U.S.C. 441a(d)).”
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52. RNC’s May monthly report (FEC Form 3x, filed 05/20/2012) shows the following yearto-date totals as of April 30, 2012: $43,544,582 in contributions received from “Individuals/Persons Other Than Political Committees,” $0 in contributions from “Political Party Committees,” and $1,100,000 in contributions from “Other Political Committees (such as PACs),” for
total contributions received of $44,644,582, of which refunded contributions totaled $131,166.
The same report showed $5,000 in “Contributions to Federal Candidates/Committees and Other
Political Committees,” $0 in independent expenditures, and $0 in “Coordinated Expenditures
Made by Party Committees (2 U.S.C. 441a(d)).”
53. RNC’s FEC report summary for the 2009-10, election-cycle biennium shows that RNC
had receipts of $196,336,723; disbursements of $210,769,855; cash on hand of $725,654; and
debt of $21,056,780. See http://fec.gov/finance/disclosure/srssea.shtml (searchable).
54. RNC’s FEC report summary for the 2011-12 election cycle shows that through April 30,
2012, RNC had receipts of $135,157,906; disbursements of $101,071,289; cash on hand of
$34,797,272; and debt of $9,9000,000. Id.
55. NRSC’s FEC report summary for the 2009-10 election cycle shows that NRSC had receipts of $84,513,719; disbursements of $68,099,551; cash on hand of $0; and debt of $0. Id.
56. NRSC’s FEC report summary for the 2011-12 election cycle shows that through April
30, 2012, NRSC had receipts of $60,578,818; disbursements of $39,040,763; cash on hand of
$21,656,370; and debt of $0. Id.
57. NRCC’s FEC report summary for the 2009-10 election cycle shows that NRCC had receipts of $133,779,119; disbursements of $132,098,663; cash on hand of $2,538,302; and debt of
$10,500,000. Id.
58. NRCC’s FEC report summary for the 2011-12 election cycle shows that through April
Verified Complaint

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30, 2012, NRCC had receipts of $80,619,807; disbursements of $51,889,660; cash on hand of
$31,268,448; and debt of $0. Id.

PACs, Super PACs, and Campaign Data
59. To put this case in broader context, to assist the Court’s understanding, and to provide
information for ready citation in later briefing as needed, Plaintiffs here provide information
about PACs, super PACs, and campaign-finance data. By contrast to contributions from individuals, political action committees, including those administered by a corporation or labor union,
may make unlimited aggregate contributions to candidates. See 2 U.S.C. § 441a(a)(1)-(8); Cal.
Med. Ass’n v. FEC, 453 U.S. 182, 198 (1981) (“CMA”) (observing that multicandidate committees “are not limited in the aggregate amount they may contribute in any year”).
60. Though they make no contributions, independent-expenditure-only PACs (“IE-PACs” or
“super PACs”) have now become powerful players in American politics, due to their ability to
raise unlimited contributions for making independent expenditures, which contributions are unlimited in amount and may be from corporations and unions. See, e.g., Jeremy W. Peters, ‘Super
PACs,’ Not Campaigns, Do Bulk of Ad Spending, N.Y. Times, Mar. 2, 2012, http://www.
nytimes.com/2012/ 03/03/us/politics/super-pacs-not-campaigns-do-bulk-of-ad-spending.html?_
r=1&ref=politics; Bob Biersack, Outside Spending: The Big Picture (So Far) (June 11, 2012),
http://www.opensecrets.org/news/2012/06/outside-spending---the-big-picture.html.. See also
FEC Advisory Opinions 2010-09 (Club for Growth) and 2010-11 (Commonsense Ten).
61. The Sunlight Foundation Reporting Group compiles reporting information on IE-PAC
spending, listed by IE-PAC, with links to each group’s FEC filings on the FEC website. See
http://reporting.sunlightfoundation.com/outside-spending/super-pacs/. For example, it reported,
as of June 12, 2012 (based on then-current FEC reports), that IE-PACs had expended a total of
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21

$119,535,108 in independent expenditures in the 2011-12 election cycle, including $46,540,815
for Restore our Future, Inc. (supporting Mitt Romney) and $17,003,039 for Winning Our Future
(supporting Newt Gingrich), and $7,529,619 for Red White and Blue Fund (supporting Rick
Santorum). Id. (last visited June 12, 2012).
62. The Sunlight Foundation Reporting Group also compiles reporting information on candidates supported or opposed by independent expenditures (by any entity), as well as electioneering
communications (essentially targeted broadcast communications mentioning federal candidates
in defined periods before elections, see 2 U.S.C. § 434(f)(3) (“electioneering communication”
definition)). See http://reporting.sunlightfoundation.com/outside-spending/candidates/. For example, it reported, as of June 12, 2012 (based on then-current FEC reports), the following amounts
for independent expenditures either supporting or opposing the following candidates: Barack
Obama = $3,514,309; Mitt Romney = $25,346,828; Rick Santorum = $28,931,757; Newt
Gingrich = $32,200,502. Id. (last visited June 12, 2012). Clicking on the candidate’s name at the
same URL will provide a list of IE-PACs making independent expenditures supporting or opposing the selected candidate, whether the IE-PAC supported or opposed the candidate, the amount
of the independent expenditure, and links to download FEC data (on independent expenditures or
electioneering communications) in spreadsheet format.
63. A list of all federal races by office with total independent-expenditure and
electioneering-communication spending (based on current FEC data) is available at
http://reporting.sunlightfoundation.com/outside-spending/races/ (last visited June 12, 2012).
64. At the FEC website, www.fec.gov, the reports of candidate and other committees are
available with a search feature. 2012 presidential campaign finance information is available at
http://www.fec.gov/disclosurep/pnational.do. As of June 12, 2012 (based on then-current FEC
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22

reports), this latter website reported the following (rounded in millions of dollars) amounts of
contributions received (among others): Obama = 217; Romney = 97.6; Paul = 38.7; Gingrich =
23.1; Perry = 19.7; Cain = 16.3; Santorum = 21.8; Bachmann = 10.3. Id. (last visited June 12,
2012).

Restrictions on Transfers Between Federal Candidates
65. The authorized committee of one officeholder or candidate can only contribute up to
$2,000 per calendar year to the authorized committee of another officeholder or candidate. 2
U.S.C. § 432(e)(3)(B).
66. Earmarking contributions to a particular candidate via an authorized committee of another candidate does not allow circumvention of contribution limits because any funds directed to
a candidate through an intermediary are considered contributions to the intended recipient and
any transfers in derogation of the contribution limits are prohibited. 2 U.S.C. §§ 441a(a)(8) and
441f.

Penalties
67. Under 2 U.S.C. § 437g(d)(1), knowing and willful violations of a contribution limit, such
as the provisions here at issue, can carry criminal penalties of up to $500,000 and five years in
prison.
68. Under 2 U.S.C. § 437g(a)(5)(B), knowing and willful violations of the provisions here at
issue can carry civil penalties of the greater of $10,000 or 200 percent of any contribution involved in the violation.

Advisory Opinion Request
69. Though the courts in Davis v. FEC, 554 U.S. 724, 740-42 (2008), and Citizens United v.

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23

FEC, 130 S. Ct. 876, 904-11 (2010), clearly limited the scope of “corruption”—the sole cognizable interest for restricting core political activity—to the quid-pro-quo-corruption risk and rejected
the antidistortion interest in overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652
(1990), the FEC continues to stonewall and ignore these rulings, causing continued injury to
McCutcheon.
70. On March 9, 2012, Shaun McCutcheon submitted an advisory opinion request (“AOR”)
to the FEC pursuant to 2 U.S.C. § 437f. (All documents related to this AOR are available at
http://saos.nictusa.com/saos/searchao?SUBMIT=continue&PAGE_NO=-1.) This request asked
whether his actions would be lawful if he made contributions to numerous federal candidates all
within the base per-candidate limit at 2 U.S.C. § 441a(a)(3)(A) but which aggregated in excess of
the $46,200 biennial limit.2
71. Pursuant to 11 C.F.R. § 112.1, the FEC accepted the AOR for review, assigned it AOR
number 2012-14, and posted it on the FEC’s website for public comment on March 14, 2012.
72. On April 23, 2012, the FEC’s general counsel issued a draft advisory opinion in response
to McCutcheon’s AOR. The draft advisory opinion concluded that McCutcheon’s planned contributions would be subject to the contribution limits of 2 U.S.C. § 441a(a)(3)(A) and related FEC
regulations. The draft advisory opinion did not reach the merits of McCutcheon’s constitutional
challenge to the statute, asserting that the Commission lacked authority to review for constitutionality a statute the Commission was charged with enforcing.
73. On April 26, 2012, at an open meeting of the FEC, the Commission voted to approve the

2

McCutcheon’s request indicated that his planned contributions would total $51,900 during
the 2011-2012 biennium. Because McCutcheon contributed $2,500 to Josh Mandel for the general election, in addition to the $2,500 primary contribution to Mr. Mandel, the aggregate total of
McCutcheon’s planned contributions this biennium was actually $54,400.
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draft described above as Advisory Opinion 2012-14.
74. The Commission’s issuance of Advisory Opinion 2012-14, declining to review the constitutionality of the biennial aggregate limit on candidate contributions, deprives McCutcheon of
a legal reliance defense that he could otherwise receive under 2 U.S.C. § 437f(c). Because the
FEC asserts that it must enforce the statute, despite and without any consideration of its constitutional defects, McCutcheon may be subjected to civil or criminal penalties under 2 U.S.C. § 437g
for engaging in political association. The advisory opinion process in this matter is complete and
deprived plaintiffs of a legal right—to engage freely in constitutionally protected speech and association. See Unity 08 v. FEC, 596 F.3d 861, 865 (D.C. Cir. 2010) (“parties are commonly not
required to violate an agency’s legal position and risk an enforcement proceeding before they
may seek judicial review”); see also Democratic Senatorial Campaign Committee v. FEC, 918 F.
Supp. 1 (D.D.C. 1994).

Immediate Harm to Plaintiffs
75. Mr. McCutcheon desires to make a series of contributions before coming primaries and
the November general election that will exceed the biennial contribution limits. McCutcheon’s
First Amendment rights are, and will be, violated each day that he is prohibited from making the
planned contributions. Though the primary and general elections are fast approaching, he is prohibited by 2 U.S.C. § 441a(a)(3)(A) and related FEC regulations from making these contributions, and thus from engaging in political speech and associating with the candidates of his
choosing and like-minded individuals. Every day that passes is another denial of his right of
speech and association in this election cycle and denies the candidates of critical funds that could
assist with the candidates’ campaigns. For those candidates who do not advance past the primary
election, McCutcheon will have lost completely the ability to support those candidates, and if he
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25

is not allowed to support candidates before these primaries and the general election, he will be
irreparably harmed.
76. Mr. McCutcheon filed his FEC advisory opinion request as promptly as possible to ensure that his planned speech and association would be deemed lawful under BCRA and related
regulations. The FEC issued a definitive statement against the legality of McCutcheon’s planned
contributions, and he has effectively been prevented from exercising protected rights of political
association.
77. Mr. McCutcheon similarly faces immediate and irreparable harm if he is unable to contribute to RNC, NRSC, and NRCC as verifies his desire to do. The November general election is
less than a half year away and, if his contributions are to be used for the various activities in
which national party committees engage in advance of general elections, as he desires, then he
must be able to make his contribution as soon as possible.
78. RNC likewise faces immediate harm if it is unable to receive these intended contributions to it, from McCutcheon and other would-be contributors, to use as soon as possible in advance of the November 2012 election.

Future Plans and Ongoing and Irreparable Harm
79. Before the 2012 primary and general elections, Mr. McCutcheon would like to make the
planned contributions outlined above, but he cannot because of the biennial contribution limits at
2 U.S.C. § 441a(a)(3)(A) and (B).
80. During the 2013-2014 election cycle, Mr. McCutcheon would like to make contributions
permitted by the base contribution limits at 2 U.S.C. § 441a(a)(1) to a number of federal candidates whom Mr. McCutcheon decides to support in the next election cycle, aggregating in excess
of $60,000, and to national party committees aggregating at least $75,000. Unless the unconstituVerified Complaint

26

tionality of 2 U.S.C. § 441a(a)(3)(A) and (B) is recognized, McCutcheon will not be permitted to
do so.
81. In the future, all Plaintiffs intend to do materially similar actions to those that they state
their desire and intention to do here, if not limited by the biennial contribution limits. Given the
recurring election-related context, the usual length of time for litigation such as this to be finally
resolved, and the ongoing restrictions imposed by the biennial contribution limits, there is a
strong likelihood that situations similar to those described here will recur without opportunity for
full litigation. Thus, even if this case is not fully litigated before the upcoming primaries and the
November 2012 election, this case will not be moot because it will be capable of repetition yet
evading review. See, e.g., FEC v. Wisconsin Right to Life, 551 U.S. 449, 461-63 (2007) (“WRTLII”) (Roberts, C.J., joined by Alito, J.) (controlling opinion); Davis v. FEC, 554 U.S. 724, 734-36
(2008).
82. Plaintiffs will face a credible threat of prosecution if they make, or receive, contributions
in excess of the biennial contribution limits at 2 U.S.C. §§ 441a(a)(3) and 441a(c) (as indexed for
inflation at 76 Fed. Reg. at 8369).
83. If Plaintiffs do not obtain the requested relief, they will not proceed with their planned
activities. In such an event, they will be deprived of their constitutional rights under the First
Amendment to the United State Constitution and will suffer irreparable harm. There is no adequate remedy at law.

Count 1
The Biennial Limit on Contributions to Non-Candidate Committees
Lacks a Constitutionally Cognizable Interest as Applied to
Contributions to National Political Party Committees.
84. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of
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the preceding paragraphs.
85. Shaun McCutcheon and RNC challenge the $70,800 (currently) biennial contribution
limit on contributions to all non-candidate committees at 2 U.S.C. § 441a(a)(3)(B) as unconstitutional as applied to contributions to national party committees.
86. The base contribution limit currently allows contributions of up to $30,800 per year to a
national party committee, 2 U.S.C. § 441a(a)(1)(B), but this biennial contribution limit caps contributions to non-candidate committees at $70,800 (currently), 2 U.S.C. § 441a(3)(B).
87. In Buckley v. Valeo, the Supreme Court rejected a facial constitutional challenge to an
“overall $25,000 ceiling” on total contributions in a two-year period that was in the 1974 version
of FECA that Buckley considered. See 424 U.S. 1, 38 (1976).
88. The FECA contribution-limits scheme in effect in 1974 included only the following applicable contribution limits, codified at (then) 18 U.S.C. § 608:
•

a $1,000 per election limit on contributions by a “person” to a candidate, Buckley, 424
U.S. at 189;

•

a $5,000 per election limit on contributions by what would now be called a multi-candidate political committee to a candidate, id.; and

•

a $25,000 ceiling on total contributions by an individual in a year, with contributions in
non-election years counted as being made in the following election year, id.3

3

The Buckley Appendix, 424 U.S. at 189, set out these contribution limits as follows:
(b) Contributions by persons and committees.
(1) Except as otherwise provided by paragraphs (2) and (3), no person shall make
contributions to any candidate with respect to any election for Federal office which,
in the aggregate, exceed $1,000.
(2) No political committee (other than a principal campaign committee) shall make
contributions to any candidate with respect to any election for Federal office which,
in the aggregate, exceed $5,000. Contributions by the national committee of a political party serving as the principal campaign committee of a candidate for the office of

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89. The 1974 FECA scheme also included several limits on expenditures, including by candidates and by any person of $1,000 per year “relative to a clearly identified candidate.” Buckley,
424 U.S. at 193. These expenditure limits were all held unconstitutional by Buckley because they
restricted core political speech and were not justified by interests in avoiding corruption or the
appearance of corruption, id. at 45-48, circumvention of contribution limits, id. at 44-48, or leveling the playing field (an impermissible interest), id. at 48-49.
90. Missing from the FECA scheme that Buckley considered were limits on contributions to
political committees other than the $25,000 biennial ceiling on total contributions. Without the
ceiling, in a biennial period an individual could give $1,000 per election to an unlimited number
of candidates or unlimited amounts to unlimited political committees (including political party
committees and PACs). This is the system that Buckley considered, that governed its analysis,
and that controls the extent of its holding.
91. Buckley spent little time in upholding the “overall $25,000 ceiling” on “contributions,”
noting that the issue got little briefing and offering this limited analysis:
The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to
prevent evasion of the $1,000 contribution limitation by a person who might otherwise

President of the United States shall not exceed the limitation imposed by the preceding sentence with respect to any other candidate for Federal office. For purposes of
this paragraph, the term “political committee” means an organization registered as a
political committee under section 433, Title 2, United States Code, for a period of not
less than 6 months which has received contributions from more than 50 persons and,
except for any State political party organization, has made contributions to 5 or more
candidates for Federal office.
(3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For purposes of this paragraph, any contribution made in a year other than
the calendar year in which the election is held with respect to which such contribution was made, is considered to be made during the calendar year in which such election is held.
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contribute 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. The limited, additional restriction
on associational freedom imposed by the overall ceiling is thus no more than a corollary
of the basic individual contribution limitation that we have found to be constitutionally
valid.
Id. at 38 (emphasis added).
92. In response to Buckley, Congress put in place a new contribution-limits scheme without
expenditure limits, codified (as now) at 2 U.S.C. § 441a(a), adding new limits on contributions to
political party committees and to PACs to deal with any possible circumvention risk by eliminating the possibility of what Buckley called “massive” contributions, as follows:
•

a $1,000 [now $2,500] per election limit on contributions by a person to a candidate;

•

a (new) $20,000 [now $30,800] per year limit on contributions by a person to a national
political party;

•

a (new) $5,000 per year limit on contributions by a person to any other political committee;4

•

limits on contributions by a “multicandidate committee”5 of—
- $5,000 per election to a candidate,
- (new) $15,000 per year to a national political party, and
- (new) $5,000 per year to any other political committee; and

•

a $25,000 biennial ceiling on total contributions by an individual.

4

BCRA increased the limit on contributions to state party committees from $5,000 to
$10,000 per year. See Pub. L. 107-155, § 102, 116 Stat. at 86-87 (2002).
5

These limits are only for multicandidate committees, i.e., those recognized as political committees for 6 months, receiving contributions from over 50 persons, and contributing to 5 or more
candidates. See 11 C.F.R. § 100.5(e)(3). So a single-candidate committee, see 11 C.F.R.
§ 100.5(e)(2), or other non-multicandidate committee would be a “person” limited to the same
limits as other “persons,” here $1,000.
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See Pub. L. No. 94-283, 90 Stat. 475 (1976).6
93. Though limits were added on contributions by persons to political parties and political
committees, the “overall $25,000 ceiling” on individual contributions was also retained.
94. The $5,000/year limit on contributions by “persons” to a PAC was upheld in CMA, 453
U.S. 182, based on eliminating a circumvention risk. Id. at 197-99 (Marshall, J., joined by
Brennan, White & Stevens, JJ.) (footnotes omitted); id. at 203 (Blackmun, J., concurring in part
and concurring in the judgment).
95. In footnote 18, the CMA plurality recorded key legislative history for the 1976 FECA
amendments, which history explains that the new limits on contributions to party committees and
PACs were, inter alia, to “restrict . . . circumvent[ion]” of contribution limits, including by the

6

The “Federal Elections Campaign Act Amendments of 1976” added new contributions in a
new § 320 as follows:
LIMITATIONS ON CONTRIBUTIONS AND EXPENDITURES
“Sec. 320. 2 USC 441a. (a) (1) No person shall make contributions—,
“(A) to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $1,000;
“(B) to the political committees established and maintained by a national political party,
which are not the authorized political committees of any candidate, in any calendar year
which, in the aggregate, exceed $20,000; or
“(C) to any other political committee in any calendar year which, in the aggregate, exceed $5,000.
“(2) No multicandidate political committee shall make contributions—,
“(A) to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $5,000;
“(B) to the political committees established and maintained by a national political party,
which are not the authorized political committees of any candidate, in any calendar year,
which, in the aggregate, exceed $15,000; or
“(C) to any other political committee in any calendar year which, in the aggregate, exceed $5,000.
“(3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For purposes of this paragraph, any contribution made to a candidate in a year
other than the calendar year in which the election is held with respect to which such contribution is made, is considered to be made during the calendar year in which such election is held.
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proliferation of PACs focused more on “advancing a candidate’s campaign” than their own agendas:
FN18. The Conference Report on the provision in the 1976 amendments to the Act that
became § 441a(a)(1)(C) specifically notes:
“The conferees’ decision to impose more precisely defined limitations on the amount an
individual may contribute to a political committee, other than a candidate’s committees,
and to impose new limits on the amount a person or multicandidate committee may contribute to a political committee, other than candidates’ committees, is predicated on the
following considerations: first, these limits restrict the opportunity to circumvent the
$1,000 and $5,000 limits on contributions to a candidate; second, these limits serve to
assure that candidates’ reports reveal the root source of the contributions the candidate
has received; and third, these limitations minimize the adverse impact on the statutory
scheme caused by political committees that appear to be separate entities pursuing their
own ends, but are actually a means for advancing a candidate’s campaign.” H.R. Conf.
Rep. No. 94-1057, pp. 57-58 (1976), U.S. Code Cong. & Admin. News 1976, pp. 929,
972.
Id. at 198 n.18 (emphasis added).
96. In addition, the Conference Report set out the new anti-proliferation rules in the new law
to eliminate the ability to circumvent contribution limits by the use of many created political
committees:
The anti-proliferation rules established by the conference substitute are intended to prevent corporations, labor organizations, or other persons or groups of persons from evading the contribution limits of the conference substitute. Such rules are described as follows:
1. All of the political committees set up by a single corporation and its subsidiaries
are treated as a single political committee.
2. All of the political committees set up by a single international union and its local
unions are treated as a single political committee.
3. All of the political committees set up by the AFL-CIO and all its State and local
central bodies are treated as a single political committee.
4. All the political committees established by the Chamber of Commerce and its State
and local Chambers are treated as a single political committee
5. The anti-proliferation rules stated also apply in the case of multiple committees
established by a group of persons.
H.R. Conf. Rep. No. 94-1057, pp. 57-58 (1976). The Conference Report said the “conference
substitute is the same as the Senate bill” (with exceptions), id. at 57, which in turn was “intended
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32

to curtail the vertical proliferation of political committee contributions,” id. at 53-54.
97. The 1976 scheme that Congress enacted in reaction to Buckley differs for purposes of
constitutional analysis in substantial ways from what Buckley considered, so the facial upholding
of the old “overall $25,000 ceiling” did not control after those 1976 amendments. BCRA repealed and replaced the old “overall $25,000 ceiling” with two biennial contribution limits (candidate and non-candidate) with the latter containing a sub-limit that also acts as a cap on contributions to non-candidate, non-national-party committees (i.e., state, district, and local party committees and to PACs), so the holding in Buckley does not control the BCRA scheme. In any
event, the upholding of the “overall $25,000 ceiling” in Buckley involved a facial challenge that
cannot control the challenges here that are as-applied.
98. By placing limits on contributions to political parties and PACs to eliminate the circumvention risk, Congress eliminated the conduit concern on which Buckley relied to facially uphold
the “overall $25,000 ceiling” on contributions. That scheme has been continued to the present.
So a contributor can no longer contribute what Buckley called “massive” amounts of money to a
political committee or political party. As a result, there is no possibility of a benefit flowing to
any candidate that implicates either a cognizable quid-pro-quo-corruption risk or a cognizable
risk of circumvention that would trigger the quid-pro-quo-corruption risk.
99. Moreover, candidate committees were “persons” limited to contributing $1000 per election to candidates or candidate’s committees under the FECA scheme that Buckley considered
and in 1980 Congress enacted a new limit of $1,000 per election on contributions from candidate
committees to candidates committees, see Pub. L. No. 96-187, 93 Stat. 1339 (1980), codified at
42 U.S.C. § 432(e)(3)(A)-(B), which was increased to $2,000 in 2004, see Pub. L. No. 108-447,
118 Stat. 2809 (2004). See 11 C.F.R. §§ 102.12(c)(2) and 102.13(c)(2) (same). Consequently,
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33

contributions to candidate committees could not pose any possibility of a circumvention by “massive” contributions to candidate committees that might somehow benefit other candidates.
100. In addition, the “anti-proliferation rules” of the 1976 FECA amendments, see supra
¶ 96, eliminate circumvention of contribution limits by means of proliferating political committees.
101. Since the limits on contributions to political parties and PACs eliminate any “massive”contributions-circumvention concern and restrict the effect of a proliferation of PACs particularly
promoting a particular candidate, there is no longer any constitutionally cognizable circumvention interest to justify the biennial contribution limits as applied to contributions of up to $30,800
(currently) per calendar year to national party committees.
102. National political parties pose no cognizable quid-pro-quo-corruption risk to their candidates. See, e.g., Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604,
616 (1996) (“Breyer, J., joined by O’Connor & Souter, J.J.) (“We are not aware of any special
dangers of corruption associated with political parties . . . .”) (“Colorado-I”); Colorado-II, 533
U.S. at 456 n.18 (not deciding whether parties posed a corruption risk to their candidates because
case could be decided based on anti-circumvention interest); id. at 476 (Thomas, J., joined by
Rehnquist, C.J., and Scalia & Kennedy, JJ., dissenting) (because the Court could not show that
political parties corrupted their candidates, it relied on an anti-circumvention interest).
103. Thus, there is no cognizable governmental interest supporting the biennial contribution
limits at 2 U.S.C. § 441a(a)(3)(B) as applied to contribution limits to national party committees
that are otherwise permissible under 2 U.S.C. § 441a(a)(1)(B), and such application is unconstitutional.
104. The aggregate contribution limit at 2 U.S.C. § 441a(3)(B) as applied to national party
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34

committees should be subjected to strict scrutiny because it substantially burdens McCutcheon’s
right to free speech and association with the national party committees of his choosing. Because
the base contribution limit at 2 U.S.C. § 441a(a)(1)(B) already limits contributions to national
party committees, the biennial limit is effectively a limit on expenditures and should be considered under the scrutiny applicable to expenditures. Alternatively, if this Court considers the aggregate limit to be a contribution limit, though the U.S. Supreme Court has treated contributions
and expenditures to different standards of scrutiny, § 441a(a)(3)(B)’s very real burden on speech
and association means Buckley’s holding that contribution limits are subject to less rigorous “exacting scrutiny” rather than strict scrutiny, 424 U.S. at 19-23, 25, must be revisited. Strict scrutiny requires the Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest. Citizens United, 130 S. Ct. at 898. But under either
level of scrutiny, Plaintiffs should prevail.
105. The biennial limit on contributions to non-candidate committees at 2 U.S.C.
§ 441a(a)(3)(B) is unconstitutional under the First Amendment guarantees of free speech and
association as applied to contributions from individuals to national party committees of up to
$30,800 (currently) per calendar year as permitted by 2 U.S.C. § 441a(a)(1)(B).

Count 2
The Biennial Limits on Contributions to Non-Candidate Committees
Are Facially Unconstitutional for Lacking a Cognizable Interest.
106. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of
the preceding paragraphs.
107. Shaun McCutcheon and RNC challenge the biennial contribution limits (currently
$70,800 and $46,200) on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B)

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35

as facially unconstitutional.
108. As noted above, the post-Buckley 1976 FECA amendments eliminated the two bases on
which Buckley relied, 424 U.S. at 38, to facially uphold the now-repealed and replaced “overall
$25,000 ceiling,” i.e., there can no longer be either political-committee proliferation or the risk of
circumvention of contribution limits by moving “massive” amounts of money through party committees or PACs “to” candidates. See supra ¶¶ 92-101. Thus, there is no cognizable interest to
justify these biennial contribution limits as applied to any non-candidate committee, so they are
facially unconstitutional.
109. These biennial contribution limits are facially unconstitutional for being substantially
overbroad under the analysis of Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). This Court is
justified in “prohibiting all enforcement” of the limits because their application to protected
speech and association is substantial, “not only in an absolute sense, but also relative to the scope
of the law’s plainly legitimate applications.” Virginia v. Hicks, 539 U.S. 113, 119-20 (2003). The
unconstitutional application of 2 U.S.C. § 441a(a)(3)(B) to all national party committees is substantial, not only in an absolute sense, but also in a relative sense, especially because there is no
“scope of . . . plainly legitimate applications” due to the lack of legitimate application to state
party committees and PACs, as set out in the preceding paragraph.
110. Because the $46,200 sub-limit on contributions to non-national party committees is an
integral part of 2 U.S.C. § 441a(a)(3)(B), because Congress thereby indicated its intention that
the provision operate as a unit, and because the sub-limit is dependent grammatically on the
whole of § 441a(a)(3)(B) for its meaning, this sub-limit must fall facially with the whole provision.
111. These biennial limits on contributions to non-candidate committees at 2 U.S.C.
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36

§ 441a(a)(3)(B) are facially unconstitutional under the First Amendment guarantees of free
speech and association.

Count 3
The Biennial Limits on Contributions to Non-Candidate Committees
Are Unconstitutionally Too Low, as Applied and Facially.
112. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of
the preceding paragraphs.
113. Shaun McCutcheon and RNC challenge the biennial contribution limits on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B) as unconstitutional for being too
low, as applied to national party committees and facially, in violation of the First Amendment
rights of expression and association under the analysis of Randall v. Sorrell, 548 U.S. 230
(2006). That analysis rejects contribution limits that “fail to satisfy the First Amendment’s requirement of careful tailoring,” i.e., “they impose burdens upon First Amendment interests that
(when viewed in light of the statute’s legitimate objectives) are disproportionately severe.” Id. at
237 (plurality opinion).
114. Mr. McCutcheon’s contributions to non-candidate federal committees in this biennium
total $27,328, and, if he is permitted to exceed the $70,800 biennial limit by contributing
$25,000 each to RNC, NRSC, and NRCC, his total biennial contributions to non-candidate committees would total $97,000.
115. The current biennial limit on contributions to non-candidate committees (including national party committees, state party committees, and PACs) is $70,800, of which no more than
$46,200 may go to non-national-party committees. 2 U.S.C. § 441a(a)(3)(B).
116. In Randall, the Supreme Court struck down as too low a $400 limit on contributions an

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37

individual may make, over a two-year period, to a state party committee. Id. at 262 (plurality
opinion). The state party committee at issue in Randall needed funds to reach the voters in a population of 621,000, see id. at 250 (Vermont population in 2006).
117. Applying Randall’s analysis to the current $70,800 biennial limit as applied to national
party committees shows its unconstitutionality. RNC and its sister committees need funds to
reach the voters in a population of over 308,000,000, see http://2010.census.gov/2010census/data/ (2010 United States population was 308,745,538). A ratio shows that contributions of
$198,389.69 over two years to the national committees of one political party—RNC, NRSC, and
NRCC—would still be too low under Randall. ($400/621,000 = $198,389/308,000,000). The
$30,800 per national-party committee per year that individuals are permitted to give under 2
U.S.C. § 441a(a)(1)(B) would result in $184,800 to the party committees per biennium. This
$184,000 is much closer to the $198,389 ratio derived from Randall. But the national party committees cannot accept these otherwise legal amounts because of the $70,800 biennial limit, which
is far too low to be constitutional. The biennial limit frustrates an individual’s right to meaningfully associate with the national committees of his political party and to fund robust political discussion.
118. This $70,800 biennial contribution limit is also facially unconstitutional as too low because it is substantially overbroad under Broadrick, 413 U.S. at 613. This $70,800 limit applies
to national party committees, state party committees (also district and local party committees),
and PACs. This Court is justified in “prohibiting all enforcement” of the limit because its application to protected speech and association is substantial, “not only in an absolute sense, but also
relative to the scope of the law’s plainly legitimate applications.” Hicks, 539 U.S. at 119-20. Its
unconstitutional application to all national party committees is substantial, not only in an absoVerified Complaint

38

lute sense, but also in a relative sense.
119. Because the $46,200 sub-limit on contributions to non-national party committees is an
integral part of 2 U.S.C. § 441a(a)(3)(B), because Congress thereby indicated its intention that
the provision operate as a unit, and because the sub-limit is dependent grammatically on the
whole of § 441a(a)(3)(B) for its meaning, this sub-limit must fall facially with the whole provision.
120. The biennial limits at 2 U.S.C. § 441a(a)(3)(B) on contributions to non-candidate committees are unconstitutional, as applied and facially, under the First Amendment guarantees of
free speech and association because the limits are not properly tailored because they are too low.

Count 4
The Biennial Limit on Contributions to Candidate Committees
Lacks a Constitutionally Cognizable Interest.
121. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of
the preceding paragraphs.
122. Shaun McCutcheon challenges the biennial limit on contributions to candidate committees (currently $46,200 per biennium) at 2 U.S.C. § 441a(a)(3)(A) as unconstitutional because it
lacks a constitutionally cognizable interest to justify it.
123. During the current election cycle (2011-12), Mr. McCutcheon is ready, willing, and
able, and has already begun, to make contributions to federal candidates that are fully within the
base, per-candidate, per-election limit at 2 U.S.C. § 441a(a)(1)(A) but exceed the biennial limit at
2 U.S.C. § 441a(a)(3)(A).
124. Mr. McCutcheon similarly desires to make contributions to multiple federal candidates
in the 2014 election cycle that would be permissible under the base contribution limit but not un-

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der the biennial contribution limit because they aggregate at least $60,000.
125. Because Mr. McCutcheon’s desired contributions to candidate committees would aggregate $54,400 during the 2012 election cycle, and at least $60,000 during the 2014 election
cycle, McCutcheon is not permitted to support the candidates of his choice by making these contributions. The biennial limit on contributions to candidate committees at 2 U.S.C.
§ 441a(a)(3)(A) severely burdens McCutcheon’s right to free speech and association. It is the
functional equivalent of a ban on an individual associating with the candidates of his choosing
because it has the effect of prohibiting contributions to “too many” candidates.
126. Even candidates who do not represent Mr. McCutcheon’s home district or state nevertheless have a direct effect on him and the implementation of his principles, such as by chairing
committees or subcommittees, controlling the legislative agenda through leadership in the chambers of Congress, being staunch advocates for certain issues or co-sponsors of key legislation,
and so on. Thus, McCutcheon has just as much interest in being involved in races outside his
home district and state as within his home district and state. But this biennial contribution limit
restricts contributors’ ability to do so by forcing them to make non-sensical tradeoffs. To use an
arbitrary example, if a contributor were just under his aggregate cap, he might have to choose
between his belief in a strong national defense (by donating to the ranking member of the Senate
Armed Services Committee) and a free economy (by donating to the chair of the House Commerce Committee).
127. The biennial limit on contributions to candidate committees should be subjected to
strict scrutiny because it substantially burdens McCutcheon’s right to free speech and association
with the candidates of his choosing. Because the base contribution limit at 2 U.S.C.
§ 441a(a)(1)(B) already limits contributions to national party committees, the biennial limit is
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40

effectively a limit on expenditures and should be considered under the scrutiny applicable to expenditures. Alternatively, if this Court considers the aggregate limit to be a contribution limit,
though the U.S. Supreme Court has treated contributions and expenditures to different standards
of scrutiny, § 441a(a)(3)(B)’s very real burden on speech and association means Buckley’s holding that contribution limits are subject to less rigorous “exacting scrutiny” rather than strict scrutiny, 424 U.S. at 19-23, 25, must be revisited. Strict scrutiny requires the Government to prove
that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.
Citizens United, 130 S. Ct. at 898. But under either level of scrutiny, McCutcheon should prevail.
128. Section 441a(a)(3)(A) fails strict scrutiny because it is not supported by a compelling
government interest. See Randall, 548 U.S. at 267 (2006) (Thomas, J. dissenting) (I would subject contribution limits to strict scrutiny, which they would fail).
129. Alternatively, under exacting scrutiny, the biennial aggregate limit on candidate contributions fails exacting scrutiny because it is not supported by a sufficient government interest.
130. The United States Supreme Court has rejected any theory of corruption beyond actual
financial quid pro quo, such as preventing candidate influence, access, or gratitude, which do not
constitute corruption. See Citizens United, 130 S. Ct. at 909-10.
131. The Supreme Court has expressly and thoroughly rejected the “antidistortion” rationale
as a cognizable justification for contribution limits. See, e.g., Davis, 554 U.S. at 741-42 (“[T]he
concept that the government may restrict the speech of some elements of our society in order to
enhance the relative voice of others is wholly foreign to the First Amendment.”) (quoting
Buckley, 424 U.S. at 48-49). The Supreme Court has stated that the “antidistortion” rationale is
not only insufficient, but is an illegitimate government interest, see Davis, 554 U.S. at 741, and
even a “dangerous enterprise,” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
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41

131 S. Ct. 2806, 2826 (2011).
132. This biennial aggregate contribution limit is not supported by an interest in eliminating
the quid-pro-quo-corruption risk, which can be a justification for government restrictions on political contributions. See Citizens United, 130 S.Ct. at 909-10; Davis, 554 U.S. at 741-44;
Buckley, 424 U.S. at 26-28. But this anti-corruption interest does not apply because the biennial
contribution limit does not apply to any contribution to a particular candidate (which would be
necessary for there to be a cognizable quid-pro-quo-corruption risk) and Mr. McCutcheon’s proposed contributions will be within the base contribution limits ($2,500 per candidate per election), which precludes any quid-pro-quo-corruption risk.
133. This biennial aggregate contribution limit is not supported by any anti-circumvention
interest, which would be the only cognizable interest that could support such an overall aggregate
limit. Buckley did not even suggest that the old “overall $25,000 ceiling” might be justified by
the use of candidate committees as conduits. Contributions to candidate committees posed no
threat that a “person . . . might . . . contribute 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. No “massive” funds could be channeled through candidate committees because candidate committees
were “persons” limited to contributing $1,000 per election to candidates or candidate’s committees under the FECA scheme that Buckley considered. Moreover, in 1980 Congress enacted a
new limit of $1,000 per election on contributions from candidate committees to candidates committees, see Pub. L. No. 96-187, 93 Stat. 1339 (1980), codified at 42 U.S.C. § 432(e)(3)(A)-(B),
which was increased to $2,000 in 2004, see Pub. L. No. 108-447, 118 Stat. 2809 (2004). See 11
C.F.R. § 102.12(c)(2) and 102.13(c)(2) (same). Consequently, contributions to candidate comVerified Complaint

42

mittees could not pose any possibility of circumvention by “massive” contributions to candidate
committees that might somehow benefit other candidates. Even Congress itself clearly does not
view contributions to candidate committees as posing a circumvention risk. See CMA, 453 U.S.
at 198 n.18 (quoted supra ¶ 95).
134. The fact that this biennial aggregate limit is not remotely directed at a threat of quidpro-quo corruption or an anti-circumvention interest—but is directed at a noncognizable anti-distortion interest—is demonstrated by simple arithmetic. In 2006, the Supreme Court invalidated a
contribution limit of $200 per election to statewide candidates passed by the Vermont legislature,
holding that it was unconstitutionally low. Randall, 548 U.S. at 249, 262-63. Vermont’s population in 2004 was 621,000, id. at 250, well below the population of the average congressional district, i.e., 646,947.1 By comparison, in 2006 the biennial aggregate contribution limit was
$40,000. If an individual wanted to make a contribution of equal value to one candidate of his
choice in all 468 federal races that year (435 House races, 33 Senate races, and the presidential
race), in order to comply with 2 U.S.C. § 441a(a)(3)(A), he would have been limited to contributing only $85.29 per candidate for the entire 2006 election cycle, which amounts to $42.64 per
election (primary and general, without accounting for any runoffs). That is far below the $200
limit held too low in Randall. In the 2012 biennium, with an aggregate limit of $46,200,
McCutcheon is limited to $98.71 per candidate for the entire cycle (468 races). This amounts to a
mere $49.35 per election—and leaves out the fact that thirty-three of those races are statewide
races for Senator, requiring candidates to reach an average of 8.7 times the number of persons
needed to be reached in a congressional campaign. Aside from being too low under Randall, see

1

In 2000, the population of the average congressional district was 646,947 (dividing the
U.S. population, 281,421,90, see http://www.census.gov/main/www/ cen2000.html, by 435).
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43

infra Count 5, considering that $49.35 is $2,450.65 less than the per-candidate limit Congress
itself deems permissible, it is clear—based on the math alone—that the aggregate limit has nothing to do with preventing corruption or circumvention.
135. Instead, the math demonstrates that this restriction furthers only the antidistortion goals,
an illegitimate government purpose. See, e.g., Davis, 554 U.S. at 741-42. To the extent the government argues that, despite appearances, the aggregate limit is actually directed at quid-pro-quo
corruption or circumvention, the fact remains that this limit operates apart from, and in addition
to, the base per-candidate limit which McCutcheon does not challenge. The burden is on the FEC
to demonstrate how an aggregate limit on contributions to candidates addresses a threat of corruption. The court should not defer to Congress’s judgment on the scope of the corruption threat
and the constitutionality of responses thereto because incumbents are not motivated to protect
candidates challenging their hold on power. See Randall, 548 U.S. at 270 n.2 (Thomas, J., concurring). While prior holdings of the Supreme Court have extended deference to Congressional
judgment on contribution limits, see, e.g., Davis, 554 U.S. at 737, those holdings should be revisited, if necessary, though the Supreme Court has since clarified that deference must yield to the
First Amendment. See Citizens United, 130 S. Ct. at 911 (“When Congress finds that a problem
exists, we must give that finding due deference; but Congress may not choose an unconstitutional
remedy.”).
136. Because the biennial limit on contributions to candidate committees at 2 U.S.C.
§ 441a(a)(3)(A) is unsupported by any cognizable government interest, it fails constitutional
scrutiny at any level of review.
137. The biennial limit on contributions to candidate committees at 2 U.S.C. § 441(a)(3)(A)
is unconstitutional under the First Amendment guarantees of free speech and association.
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44

Count 5
The Biennial Limit on Contributions to Candidate Committees
Is Unconstitutionally Too Low.
138. Plaintiffs reallege and incorporate by reference all of the allegations contained in all of
the preceding paragraphs.
139. Shaun McCutcheon challenges the biennial limit on contributions to candidate committees (currently $46,200 per biennium) at 2 U.S.C. § 441a(a)(3)(A) as unconstitutional because it
is unconstitutionally too low.
140. The reasons set out in ¶ 134, supra, demonstrate the unconstitutionality of this biennial
limit.
141. Because the biennial aggregate limit on contributions to candidates, is set at an amount
that prevents Mr. McCutcheon from meaningfully associating with all the candidates of his
choice, it is set too low to pass muster under the First Amendment to the United States Constitution and must be invalidated.
142. The biennial limit on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(B)
is unconstitutional under the First Amendment guarantees of free speech and association because
it is not properly tailored because it is too low.

Verified Complaint

45

Prayer for Relief
Wherefore, Plaintiffs pray for the following relief:
1. Convening of a three-judge court to consider this “action . . . brought for declaratory or
injunctive relief to challenge the constitutionality of any provision of [BCRA] or any amendment
made by [BCRA],” BCRA § 403(a), 116 Stat. at 113-14, and BCRA § 403, Local Civil Rule 9.1,
and pertinent law as soon as practicable;
2. “[A]dvance[ment] on the docket and . . . expedit[ion] to the greatest possible extent the
disposition of this action . . . .” BCRA § 403(a)(4) and (d)(2);
3. Alternatively, should the Court deem this a challenge to FECA, as soon as possible the
certification of this case to the United States Court of Appeals for the District of Columbia Circuit, which shall hear the matter sitting en banc. 2 U.S.C. § 437h;
4. As requested in Count 1, a declaratory judgment holding the biennial contribution limit at
2 U.S.C. § 441a(a)(3)(B) unconstitutional as applied to contributions to national party committees because the provision lacks a cognizable interest;
5. Preliminary and permanent injunctions enjoining FEC from enforcing 2 U.S.C.
§ 441a(a)(3)(B) as applied to contributions to national party committees because the provision
lacks a cognizable interest;
6. As requested in Count 2, a declaratory judgment holding the biennial contribution limits
at 2 U.S.C. § 441a(a)(3)(B) unconstitutional facially because the provision lacks a cognizable
interest;
7. Preliminary and permanent injunctions enjoining FEC from enforcing 2 U.S.C.
§ 441a(a)(3)(B) facially because the provision lacks a cognizable interest;
8. As requested in Count 3, a declaratory judgment holding the biennial contribution limits
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46

at 2 U.S.C. § 441a(a)(3)(B) unconstitutional because they are too low, as applied to national
party committees and facially;
9. Preliminary and permanent injunctions enjoining FEC from enforcing the biennial contribution limits at 2 U.S.C. § 441a(a)(3)(B) because they are unconstitutionally too low, as applied
to national party committees and facially;
10. As requested in Count 4, a declaratory judgment holding the biennial contribution limit
at 2 U.S.C. § 441a(a)(3)(A) unconstitutional because the provision lacks a cognizable interest;
11. Preliminary and permanent injunctions enjoining FEC from enforcing 2 U.S.C.
§ 441a(a)(3)(A) because the provision lacks a cognizable interest;
12. As requested in Count 5, a declaratory judgment holding the biennial contribution limit
at 2 U.S.C. § 441a(a)(3)(A) unconstitutional because it is too low;
13. Preliminary and permanent injunctions enjoining FEC from enforcing the biennial contribution limit at 2 U.S.C. § 441a(a)(3)(A) because it is unconstitutionally too low;
14. Costs and attorneys fees pursuant to any applicable statute or authority; and
15. Any other relief that this Court in its discretion deems just and appropriate.

Verified Complaint

47

Respectfully submitted,
Of Counsel for Shaun McCutcheon:
Stephen M. Hoersting*
/s/ Dan Backer
Dan Backer, DC Bar #996641
DB CAPITOL STRATEGIES, PLLC
209 Pennsylvania Ave., S.E., Suite 2109
Washington, DC 20003
202/210-5431 phone
202/478-0750 fax
[e-mail]
[e-mail]
Jerad Wayne Najvar*
NAJVAR LAW FIRM
One Greenway Plaza, Suite 225
Houston, TX 77046
281/404-4696
[e-mail]

Verified Complaint

/s/ James Bopp, Jr.
James Bopp, Jr., DC Bar #CO 0041
[e-mail]
Richard E. Coleson*
[e-mail]
Jeffrey P. Gallant*
[e-mail]
THE BOPP LAW FIRM , PC
1 South Sixth Street
Terre Haute, IN 47807-3510
812/232-2434 telephone
812/235-3685 facsimile
Counsel for Plaintiffs
*Pro Hac Vice Application To Be Filed

48

Verification
I, Reince P iebus, declare as follows:
1. I am the

~hairman

of the Republican National Committee ("RNC").

2. I have personal knowledge ofRNC, its activities, and its intentions, including those set
out in the foregL ng Verified Complaint for Declaratory and Injunctive Relief, and if called on to

I

.

testify I would ctompetently testify as to the matters stated herein.
3. I verify

I

der penalty of perjury under the laws of the United States of America that the

factual statemer s in this Complaint concerning RNC, its activities, and its intentions are true and
correct. 28 U.S .C. § 1746.
Executed

D

on ~J~ 2 ,2012.
w

Verified Complaint

Verification
I, Shaun ttcCutcheon, declare as follows:
1. I am a Plaintiff in the present case, a natural-born citizen of the United States of America,
and a resident of the State of Alabama. I am eligible to vote in an election for the office of the
President of the United States.
2. I have personal knowledge of myself, my activities, and my intentions, including those set

out in the foregoing Verified Complaint for Declaratory and Injunctive Relief, and if called on to
testify I would competently testify as to the matters stated herein.
4. I verify under penalty of perjury under the laws of the United States of America that the
factual statements in this Complaint concerning myself, my activities, and my intentions are true
and correct. 28 U.S.C. § 1746.
Executed

on ~JL~Jne=------=-2---'-/_, 2~~~
Shaun McCutcheon

Verified Complaint

Certificate of Service
I hereby certify that the foregoing complaint was served, on June 22, 2012, on the following
persons by certified mail, return receipt requested, and that a courtesy copy was emailed to Anthony Herman at [e-mail]:
Anthony Herman, General Counsel
FEDERAL ELECTION COMMISSION
999 E Street, NW
Washington, DC 20436
[phone]

Eric H. Holder, U.S Attorney General
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Ave. NW
Washington, DC 20530.

Civil Process Clerk
UNITED STATES ATTORNEY ’S OFFICE
501 Third Street, NW
Washington, DC 20530
I further certify that on the same date a copy of the complaint was provided by the same
means “to the Clerk of the House of Representatives and the Secretary of the Senate” as required
under § 403(a)(2) of the Bipartisan Campaign Reform Act of 2002, 116 Stat. 114, at the following addresses:
Clerk of the House of Representatives
U.S. HOUSE OF REPRESENTATIVES
U.S. Capitol, Room H154
Washington, DC 20515-6601

Secretary of the Senate
UNITED STATES SENATE
Washington, DC 20510-6601.

/s/ Dan Backer
Dan Backer, DC Bar #996641
DB CAPITOL STRATEGIES, PLLC
209 Pennsylvania Ave., S.E., Suite 2109
Washington, DC 20003

Verified Complaint