MCCUTCHEON v. FEC
Supreme Court Cases
572 U.S. 185 (2014)
Opinions
Majority Opinion Author
John Roberts
Majority Participants
Concurring Participants
Dissenting Participants
(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MCCUTCHEON ET AL. v. FEDERAL ELECTION
COMMISSION
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
No. 12â536. Argued October 8, 2013âDecided April 2, 2014
The right to participate in democracy through political contributions is
protected by the First Amendment, but that right is not absolute.
Congress may regulate campaign contributions to protect against
corruption or the appearance of corruption. See, e.g., Buckley v.
Valeo, 424 U. S. 1, 26â27. It may not, however, regulate contribu-
tions simply to reduce the amount of money in politics, or to restrict
the political participation of some in order to enhance the relative in-
fluence of others. See, e.g., Arizona Free Enterprise Clubâs Freedom
Club PAC v. Bennett, 564 U. S. ___, ___.
The Federal Election Campaign Act of 1971 (FECA), as amended
by the Bipartisan Campaign Reform Act of 2002 (BCRA), imposes
two types of limits on campaign contributions. Base limits restrict
how much money a donor may contribute to a particular candidate or
committee while aggregate limits restrict how much money a donor
may contribute in total to all candidates or committees. 2 U. S. C.
§441a.
In the 2011â2012 election cycle, appellant McCutcheon contributed
to 16 different federal candidates, complying with the base limits ap-
plicable to each. He alleges that the aggregate limits prevented him
from contributing to 12 additional candidates and to a number of
noncandidate political committees. He also alleges that he wishes to
make similar contributions in the future, all within the base limits.
McCutcheon and appellant Republican National Committee filed a
complaint before a three-judge District Court, asserting that the ag-
gregate limits were unconstitutional under the First Amendment.
The District Court denied their motion for a preliminary injunction
and granted the Governmentâs motion to dismiss. Assuming that the
2 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Syllabus
base limits appropriately served the Governmentâs anticorruption in-
terest, the District Court concluded that the aggregate limits sur-
vived First Amendment scrutiny because they prevented evasion of
the base limits.
Held: The judgment is reversed, and the case is remanded.
893 F. Supp. 2d 133
, reversed and remanded.
CHIEF JUSTICE ROBERTS, joined by JUSTICE SCALIA, JUSTICE KENNE-
DY, and JUSTICE ALITO, concluded that the aggregate limits are inva-
lid under the First Amendment. Pp. 7â40.
(a) Appellantsâ substantial First Amendment challenge to the cur-
rent system of aggregate limits merits plenary consideration. Pp. 7â
14.
(1) In Buckley, this Court evaluated the constitutionality of the
original contribution and expenditure limits in FECA. Buckley dis-
tinguished the two types of limits based on the degree to which each
encroaches upon protected First Amendment interests. It subjected
expenditure limits to âthe exacting scrutiny applicable to limitations
on core First Amendment rights of political expression.â 424 U. S., at
44â45. But it concluded that contribution limits impose a lesser re-
straint on political speech and thus applied a lesser but still ârigorous
standard of review,â id., at 29, under which such limits âmay be sus-
tained if the State demonstrates a sufficiently important interest and
employs means closely drawn to avoid unnecessary abridgement of
associational freedoms,â id., at 25. Because the Court found that the
primary purpose of FECAâpreventing quid pro quo corruption and
its appearanceâwas a âsufficiently importantâ governmental inter-
est, id., at 26â27, it upheld the base limit under the âclosely drawnâ
test, id., at 29. After doing so, the Court devoted only one paragraph
of its 139-page opinion to the aggregate limit then in place under
FECA, noting that the provision âha[d] not been separately addressed
at length by the parties.â Id., at 38. It concluded that the aggregate
limit served to prevent circumvention of the base limit and was âno
more than a corollaryâ of that limit. Id., at 38. Pp. 7â9.
(2) There is no need in this case to revisit Buckleyâs distinction
between contributions and expenditures and the corresponding dis-
tinction in standards of review. Regardless whether strict scrutiny or
the âclosely drawnâ test applies, the analysis turns on the fit between
the stated governmental objective and the means selected to achieve
that objective. Here, given the substantial mismatch between the
Governmentâs stated objective and the means selected to achieve it,
the aggregate limits fail even under the âclosely drawnâ test.
Buckleyâs ultimate conclusion about the constitutionality of the ag-
gregate limit in place under FECA does not control here. Buckley
spent just three sentences analyzing that limit, which had not been
Cite as: 572 U. S. ____ (2014) 3
Syllabus
separately addressed by the parties. Appellants here, by contrast,
have directly challenged the aggregate limits in place under BCRA, a
different statutory regime whose limits operate against a distinct le-
gal backdrop. Most notably, statutory safeguards against circumven-
tion have been considerably strengthened since Buckley. The 1976
FECA Amendments added another layer of base limitsâcapping con-
tributions from individuals to political committeesâand an antipro-
liferation rule prohibiting donors from creating or controlling multi-
ple affiliated political committees. Since Buckley, the Federal
Election Commission has also enacted an intricate regulatory scheme
that further limits the opportunities for circumvention of the base
limits through âunearmarked contributions to political committees
likely to contributeâ to a particular candidate. 424 U. S., at 38. In
addition to accounting for such statutory and regulatory changes, ap-
pellants raise distinct legal arguments not considered in Buckley, in-
cluding an overbreadth challenge to the aggregate limit. Pp. 10â14.
(b) Significant First Amendment interests are implicated here.
Contributing money to a candidate is an exercise of an individualâs
right to participate in the electoral process through both political ex-
pression and political association. A restriction on how many candi-
dates and committees an individual may support is hardly a âmodest
restraintâ on those rights. The Government may no more restrict
how many candidates or causes a donor may support than it may tell
a newspaper how many candidates it may endorse. In its simplest
terms, the aggregate limits prohibit an individual from fully contrib-
uting to the primary and general election campaigns of ten or more
candidates, even if all contributions fall within the base limits. And
it is no response to say that the individual can simply contribute less
than the base limits permit: To require one person to contribute at
lower levels because he wants to support more candidates or causes
is to penalize that individual for ârobustly exercis[ing]â his First
Amendment rights. Davis v. Federal Election Commân, 554 U. S. 724,
739.
In assessing the First Amendment interests at stake, the proper fo-
cus is on an individualâs right to engage in political speech, not a col-
lective conception of the public good. The whole point of the First
Amendment is to protect individual speech that the majority might
prefer to restrict, or that legislators or judges might not view as use-
ful to the democratic process. Pp. 14â18.
(c) The aggregate limits do not further the permissible governmen-
tal interest in preventing quid pro quo corruption or its appearance.
Pp. 18â36.
(1) This Court has identified only one legitimate governmental
interest for restricting campaign finances: preventing corruption or
4 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Syllabus
the appearance of corruption. See Davis, supra, at 741. Moreover,
the only type of corruption that Congress may target is quid pro quo
corruption. Spending large sums of money in connection with elec-
tions, but not in connection with an effort to control the exercise of an
officeholderâs official duties, does not give rise to quid pro quo corrup-
tion. Nor does the possibility that an individual who spends large
sums may garner âinfluence over or access toâ elected officials or po-
litical parties. Citizens United v. Federal Election Commân, 558 U. S.
310, 359. The line between quid pro quo corruption and general in-
fluence must be respected in order to safeguard basic First Amend-
ment rights, and the Court must âerr on the side of protecting politi-
cal speech rather than suppressing it.â Federal Election Commân v.
Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS,
C. J.). Pp. 18â21.
(2) The Government argues that the aggregate limits further the
permissible objective of preventing quid pro quo corruption. The dif-
ficulty is that once the aggregate limits kick in, they ban all contribu-
tions of any amount, even though Congressâs selection of a base limit
indicates its belief that contributions beneath that amount do not
create a cognizable risk of corruption. The Government must thus
defend the aggregate limits by demonstrating that they prevent cir-
cumvention of the base limits, a function they do not serve in any
meaningful way. Given the statutes and regulations currently in ef-
fect, Buckleyâs fear that an individual might âcontribute massive
amounts of money to a particular candidate through . . . unear-
marked contributionsâ to entities likely to support the candidate, 424
U. S., at 38, is far too speculative. Even accepting Buckleyâs circum-
vention theory, it is hard to see how a candidate today could receive
âmassive amounts of moneyâ that could be traced back to a particular
donor uninhibited by the aggregate limits. The Governmentâs scenar-
ios offered in support of that possibility are either illegal under cur-
rent campaign finance laws or implausible. Pp. 21â30.
(3) The aggregate limits also violate the First Amendment be-
cause they are not âclosely drawn to avoid unnecessary abridgment of
associational freedoms.â Buckley, supra, at 25. The Government ar-
gues that the aggregate limits prevent an individual from giving to
too many initial recipients who might then recontribute a donation,
but experience suggests that the vast majority of contributions are
retained and spent by their recipients. And the Government has pro-
vided no reason to believe that candidates or party committees would
dramatically shift their priorities if the aggregate limits were lifted.
The indiscriminate ban on all contributions above the aggregate lim-
its is thus disproportionate to the Governmentâs interest in prevent-
ing circumvention.
Cite as: 572 U. S. ____ (2014) 5
Syllabus
Importantly, there are multiple alternatives available to Congress
that would serve the Governmentâs interest in preventing circumven-
tion while avoiding âunnecessary abridgmentâ of First Amendment
rights. Buckley, supra, at 25. Such alternatives might include tar-
geted restrictions on transfers among candidates and political com-
mittees, or tighter earmarking rules. Transfers, after all, are the key
to the Governmentâs concern about circumvention, but they can be
addressed without such a direct and broad interference with First
Amendment rights. Pp. 30â35.
(4) Disclosure of contributions also reduces the potential for
abuse of the campaign finance system. Disclosure requirements,
which are justified by âa governmental interest in âprovid[ing] the
electorate with informationâ about the sources of election-related
spending,â Citizens United, supra, at 367, may deter corruption âby
exposing large contributions and expenditures to the light of publici-
ty,â Buckley, supra at 67. Disclosure requirements may burden
speech, but they often represent a less restrictive alternative to flat
bans on certain types or quantities of speech. Particularly with mod-
ern technology, disclosure now offers more robust protections against
corruption than it did when Buckley was decided. Pp. 35â36.
(d) The Government offers an additional rationale for the aggregate
limits, arguing that the opportunity for corruption exists whenever a
legislator is given a large check, even if the check consists of contri-
butions within the base limits to be divided among numerous candi-
dates or committees. That rationale dangerously broadens the cir-
cumscribed definition of quid pro quo corruption articulated in prior
cases. Buckley confined its analysis to the possibility that âmassive
amounts of moneyâ could be funneled to a particular candidate in ex-
cess of the base limits. 424 U. S., at 38. Recasting as corruption a
donorâs widely distributed support for a political party would dramat-
ically expand government regulation of the political process. And
though the Government suggests that solicitation of large contribu-
tions poses the corruption danger, the aggregate limits are not lim-
ited to any direct solicitation by an officeholder or candidate. Pp. 36â
39.
JUSTICE THOMAS agreed that the aggregate limits are invalid under
the First Amendment, but would overrule Buckley v. Valeo, 424 U. S.
1, and subject BCRAâs aggregate limits to strict scrutiny, which they
would surely fail. Buckleyâs âanalytic foundation . . . was tenuous
from the very beginning and has only continued to erode in the inter-
vening years.â Nixon v. Shrink Missouri Government PAC, 528 U. S.
377, 412 (THOMAS, J., dissenting). Contributions and expenditures
are simply âtwo sides of the same First Amendment coin,â and this
Courtâs efforts to distinguish the two have produced mere âword
6 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Syllabus
gamesâ rather than any cognizable constitutional law principle.
Buckley, supra, at 241, 244 (Burger, C. J., concurring in part and dis-
senting in part). Pp. 1â5.
ROBERTS, C. J., announced the judgment of the Court and delivered
an opinion, in which SCALIA, KENNEDY, and ALITO, JJ., joined. THOMAS,
J., filed an opinion concurring in the judgment. BREYER, J., filed a dis-
senting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 572 U. S. ____ (2014) 1
Opinion of ROBERTS, C. J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12â536
_________________
SHAUN MCCUTCHEON, ET AL., APPELLANTS v.
FEDERAL ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[April 2, 2014]
CHIEF JUSTICE ROBERTS announced the judgment of the
Court and delivered an opinion, in which JUSTICE SCALIA,
JUSTICE KENNEDY, and JUSTICE ALITO join.
There is no right more basic in our democracy than the
right to participate in electing our political leaders. Citi-
zens can exercise that right in a variety of ways: They can
run for office themselves, vote, urge others to vote for a
particular candidate, volunteer to work on a campaign,
and contribute to a candidateâs campaign. This case is
about the last of those options.
The right to participate in democracy through political
contributions is protected by the First Amendment, but
that right is not absolute. Our cases have held that Con-
gress may regulate campaign contributions to protect
against corruption or the appearance of corruption. See,
e.g., Buckley v. Valeo, 424 U. S. 1, 26â27 (1976) (per curiam).
At the same time, we have made clear that Congress
may not regulate contributions simply to reduce the
amount of money in politics, or to restrict the political
participation of some in order to enhance the relative
influence of others. See, e.g., Arizona Free Enterprise
2 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
Clubâs Freedom Club PAC v. Bennett, 564 U. S. ___, ___
(2011) (slip op., at 24â25).
Many people might find those latter objectives attrac-
tive: They would be delighted to see fewer television com-
mercials touting a candidateâs accomplishments or dispar-
aging an opponentâs character. Money in politics may at
times seem repugnant to some, but so too does much of
what the First Amendment vigorously protects. If the
First Amendment protects flag burning, funeral protests,
and Nazi paradesâdespite the profound offense such
spectacles causeâit surely protects political campaign
speech despite popular opposition. See Texas v. Johnson,
491 U. S. 397 (1989); Snyder v. Phelps, 562 U. S. ___
(2011); National Socialist Party of America v. Skokie, 432
U. S. 43 (1977) (per curiam). Indeed, as we have empha-
sized, the First Amendment âhas its fullest and most
urgent application precisely to the conduct of campaigns
for political office.â Monitor Patriot Co. v. Roy, 401 U. S.
265, 272 (1971).
In a series of cases over the past 40 years, we have
spelled out how to draw the constitutional line between
the permissible goal of avoiding corruption in the political
process and the impermissible desire simply to limit polit-
ical speech. We have said that government regulation
may not target the general gratitude a candidate may feel
toward those who support him or his allies, or the political
access such support may afford. âIngratiation and access
. . . are not corruption.â Citizens United v. Federal Elec-
tion Commân, 558 U. S. 310, 360 (2010). They embody a
central feature of democracyâthat constituents support
candidates who share their beliefs and interests, and
candidates who are elected can be expected to be respon-
sive to those concerns.
Any regulation must instead target what we have called
âquid pro quoâ corruption or its appearance. See id., at
359. That Latin phrase captures the notion of a direct
Cite as: 572 U. S. ____ (2014) 3
Opinion of ROBERTS, C. J.
exchange of an official act for money. See McCormick v.
United States, 500 U. S. 257, 266 (1991). âThe hallmark of
corruption is the financial quid pro quo: dollars for po-
litical favors.â Federal Election Commân v. National Con-
servative Political Action Comm., 470 U. S. 480, 497
(1985). Campaign finance restrictions that pursue other
objectives, we have explained, impermissibly inject the
Government âinto the debate over who should govern.â
Bennett, supra, at ___ (slip op., at 25). And those who
govern should be the last people to help decide who should
govern.
The statute at issue in this case imposes two types of
limits on campaign contributions. The first, called base
limits, restricts how much money a donor may contribute
to a particular candidate or committee. 2 U. S. C.
§441a(a)(1). The second, called aggregate limits, restricts
how much money a donor may contribute in total to all
candidates or committees. §441a(a)(3).
This case does not involve any challenge to the base
limits, which we have previously upheld as serving the
permissible objective of combatting corruption. The Gov-
ernment contends that the aggregate limits also serve that
objective, by preventing circumvention of the base limits.
We conclude, however, that the aggregate limits do little,
if anything, to address that concern, while seriously re-
stricting participation in the democratic process. The
aggregate limits are therefore invalid under the First
Amendment.
I
A
For the 2013â2014 election cycle, the base limits in the
Federal Election Campaign Act of 1971 (FECA), as
amended by the Bipartisan Campaign Reform Act of 2002
(BCRA), permit an individual to contribute up to $2,600
per election to a candidate ($5,200 total for the primary
4 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
and general elections); $32,400 per year to a national
party committee;1 $10,000 per year to a state or local party
committee; and $5,000 per year to a political action com-
mittee, or âPAC.â 2 U. S. C. §441a(a)(1); 78 Fed. Reg. 8532
(2013).2 A national committee, state or local party com-
mittee, or multicandidate PAC may in turn contribute up
to $5,000 per election to a candidate. §441a(a)(2).3
The base limits apply with equal force to contributions
that are âin any way earmarked or otherwise directed
through an intermediary or conduitâ to a candidate.
§441a(a)(8). If, for example, a donor gives money to a
party committee but directs the party committee to pass
the contribution along to a particular candidate, then the
transaction is treated as a contribution from the original
donor to the specified candidate.
For the 2013â2014 election cycle, the aggregate limits in
BCRA permit an individual to contribute a total of $48,600
to federal candidates and a total of $74,600 to other politi-
cal committees. Of that $74,600, only $48,600 may be
contributed to state or local party committees and PACs,
ââââââ
1 Thereare six authorized national party committees: the Republican
National Committee, the Democratic National Committee, the National
Republican Senatorial Committee, the Democratic Senatorial Cam-
paign Committee, the National Republican Congressional Committee,
and the Democratic Congressional Campaign Committee. See 2
U. S. C. §431(14).
2 A PAC is a business, labor, or interest group that raises or spends
money in connection with a federal election, in some cases by contrib-
uting to candidates. A so-called âSuper PACâ is a PAC that makes only
independent expenditures and cannot contribute to candidates. The
base and aggregate limits govern contributions to traditional PACs, but
not to independent expenditure PACs. See SpeechNow.org v. Federal
Election Commân, 599 F. 3d 686, 695â696 (CADC 2010) (en banc).
3 A multicandidate PAC is a PAC with more than 50 contributors that
has been registered for at least six months and has made contributions
to five or more candidates for federal office. 11 CFR §100.5(e)(3) (2012).
PACs that do not qualify as multicandidate PACs must abide by the
base limit applicable to individual contributions.
Cite as: 572 U. S. ____ (2014) 5
Opinion of ROBERTS, C. J.
as opposed to national party committees. §441a(a)(3);
78 Fed. Reg. 8532. All told, an individual may contribute
up to $123,200 to candidate and noncandidate committees
during each two-year election cycle.
The base limits thus restrict how much money a donor
may contribute to any particular candidate or committee;
the aggregate limits have the effect of restricting how
many candidates or committees the donor may support, to
the extent permitted by the base limits.
B
In the 2011â2012 election cycle, appellant Shaun
McCutcheon contributed a total of $33,088 to 16 different
federal candidates, in compliance with the base limits
applicable to each. He alleges that he wished to contribute
$1,776 to each of 12 additional candidates but was pre-
vented from doing so by the aggregate limit on contribu-
tions to candidates. McCutcheon also contributed a total
of $27,328 to several noncandidate political committees, in
compliance with the base limits applicable to each. He
alleges that he wished to contribute to various other polit-
ical committees, including $25,000 to each of the three
Republican national party committees, but was prevented
from doing so by the aggregate limit on contributions to
political committees. McCutcheon further alleges that he
plans to make similar contributions in the future. In the
2013â2014 election cycle, he again wishes to contribute
at least $60,000 to various candidates and $75,000 to
non-candidate political committees. Brief for Appellant
McCutcheon 11â12.
Appellant Republican National Committee is a national
political party committee charged with the general man-
agement of the Republican Party. The RNC wishes to
receive the contributions that McCutcheon and similarly
situated individuals would like to makeâcontributions
otherwise permissible under the base limits for national
6 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
party committees but foreclosed by the aggregate limit on
contributions to political committees.
In June 2012, McCutcheon and the RNC filed a com-
plaint before a three-judge panel of the U. S. District
Court for the District of Columbia. See BCRA §403(a), 116
Stat. 113â114. McCutcheon and the RNC asserted that
the aggregate limits on contributions to candidates and to
noncandidate political committees were unconstitutional
under the First Amendment. They moved for a prelimi-
nary injunction against enforcement of the challenged
provisions, and the Government moved to dismiss the
case.
The three-judge District Court denied appellantsâ mo-
tion for a preliminary injunction and granted the Govern-
mentâs motion to dismiss. Assuming that the base limits
appropriately served the Governmentâs anticorruption
interest, the District Court concluded that the aggregate
limits survived First Amendment scrutiny because they
prevented evasion of the base limits.893 F. Supp. 2d 133
,
140 (2012).
In particular, the District Court imagined a hypothetical
scenario that might occur in a world without aggregate
limits. A single donor might contribute the maximum
amount under the base limits to nearly 50 separate com-
mittees, each of which might then transfer the money to
the same single committee. Ibid. That committee, in
turn, might use all the transferred money for coordinated
expenditures on behalf of a particular candidate, allowing
the single donor to circumvent the base limit on the
amount he may contribute to that candidate. Ibid. The
District Court acknowledged that âit may seem unlikely
that so many separate entities would willingly serve as
conduitsâ for the single donorâs interests, but it concluded
that such a scenario âis not hard to imagine.â Ibid. It
thus rejected a constitutional challenge to the aggregate
limits, characterizing the base limits and the aggregate
Cite as: 572 U. S. ____ (2014) 7
Opinion of ROBERTS, C. J.
limits âas a coherent system rather than merely a collec-
tion of individual limits stacking prophylaxis upon prophy-
laxis.â Ibid.
McCutcheon and the RNC appealed directly to this
Court, as authorized by law. 28 U. S. C. §1253. In such a
case, âwe ha[ve] no discretion to refuse adjudication of the
case on its merits,â Hicks v. Miranda, 422 U. S. 332, 344
(1975), and accordingly we noted probable jurisdiction.
568 U. S. ___ (2013).
II
A
Buckley v. Valeo, 424 U. S. 1, presented this Court with
its first opportunity to evaluate the constitutionality of the
original contribution and expenditure limits set forth in
FECA. FECA imposed a $1,000 per election base limit on
contributions from an individual to a federal candidate. It
also imposed a $25,000 per year aggregate limit on all
contributions from an individual to candidates or political
committees. 18 U. S. C. §§608(b)(1), 608(b)(3) (1970 ed.,
Supp. IV). On the expenditures side, FECA imposed
limits on both independent expenditures and candidatesâ
overall campaign expenditures. §§608(e)(1), 608(c).
Buckley recognized that âcontribution and expenditure
limitations operate in an area of the most fundamental
First Amendment activities.â 424 U. S., at 14. But it
distinguished expenditure limits from contribution limits
based on the degree to which each encroaches upon pro-
tected First Amendment interests. Expenditure limits,
the Court explained, ânecessarily reduce[ ] the quantity of
expression by restricting the number of issues discussed,
the depth of their exploration, and the size of the audience
reached.â Id., at 19. The Court thus subjected expendi-
ture limits to âthe exacting scrutiny applicable to lim-
itations on core First Amendment rights of political
expression.â Id., at 44â45. Under exacting scrutiny, the
8 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
Government may regulate protected speech only if such
regulation promotes a compelling interest and is the least
restrictive means to further the articulated interest. See
Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115,
126 (1989).
By contrast, the Court concluded that contribution
limits impose a lesser restraint on political speech because
they âpermit[ ] the symbolic expression of support evi-
denced by a contribution but do[ ] not in any way infringe
the contributorâs freedom to discuss candidates and is-
sues.â Buckley, 424 U. S., at 21. As a result, the Court
focused on the effect of the contribution limits on the
freedom of political association and applied a lesser but
still ârigorous standard of review.â Id., at 29. Under that
standard, â[e]ven a â âsignificant interferenceâ with pro-
tected rights of political associationâ may be sustained if
the State demonstrates a sufficiently important interest
and employs means closely drawn to avoid unnecessary
abridgement of associational freedoms.â Id., at 25 (quot-
ing Cousins v. Wigoda, 419 U. S. 477, 488 (1975)).
The primary purpose of FECA was to limit quid pro quo
corruption and its appearance; that purpose satisfied the
requirement of a âsufficiently importantâ governmental
interest. 424 U. S., at 26â27. As for the âclosely drawnâ
component, Buckley concluded that the $1,000 base limit
âfocuses precisely on the problem of large campaign con-
tributions . . . while leaving persons free to engage in
independent political expression, to associate actively
through volunteering their services, and to assist to a
limited but nonetheless substantial extent in supporting
candidates and committees with financial resources.â Id.,
at 28. The Court therefore upheld the $1,000 base limit
under the âclosely drawnâ test. Id., at 29.
The Court next separately considered an overbreadth
challenge to the base limit. See id., at 29â30. The chal-
lengers argued that the base limit was fatally overbroad
Cite as: 572 U. S. ____ (2014) 9
Opinion of ROBERTS, C. J.
because most large donors do not seek improper influence
over legislatorsâ actions. Although the Court accepted that
premise, it nevertheless rejected the overbreadth chal-
lenge for two reasons: First, it was too âdifficult to isolate
suspect contributionsâ based on a contributorâs subjective
intent. Id., at 30. Second, âCongress was justified in
concluding that the interest in safeguarding against the
appearance of impropriety requires that the opportunity
for abuse inherent in the process of raising large monetary
contributions be eliminated.â Ibid.
Finally, in one paragraph of its 139-page opinion, the
Court turned to the $25,000 aggregate limit under FECA.
As a preliminary matter, it noted that the constitution-
ality of the aggregate limit âha[d] not been separately
addressed at length by the parties.â Id., at 38. Then, in
three sentences, the Court disposed of any constitutional
objections to the aggregate limit that the challengers
might have had:
âThe overall $25,000 ceiling does impose an ultimate
restriction upon the number of candidates and com-
mittees with which an individual may associate him-
self 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 contribute
massive amounts of money to a particular candidate
through the use of unearmarked contributions to po-
litical committees likely to contribute to that candi-
date, or huge contributions to the candidateâs political
party. The limited, additional restriction on associa-
tional freedom imposed by the overall ceiling is thus
no more than a corollary of the basic individual con-
tribution limitation that we have found to be constitu-
tionally valid.â Ibid.
10 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
B
1
The parties and amici curiae spend significant energy
debating whether the line that Buckley drew between
contributions and expenditures should remain the law.
Notwithstanding the robust debate, we see no need in this
case to revisit Buckleyâs distinction between contributions
and expenditures and the corollary distinction in the
applicable standards of review. Buckley held that the
Governmentâs interest in preventing quid pro quo corrup-
tion or its appearance was âsufficiently important,â id., at
26â27; we have elsewhere stated that the same interest
may properly be labeled âcompelling,â see National Con-
servative Political Action Comm., 470 U. S., at 496â497, so
that the interest would satisfy even strict scrutiny. More-
over, regardless whether we apply strict scrutiny or Buck-
leyâs âclosely drawnâ test, we must assess the fit between
the stated governmental objective and the means selected
to achieve that objective. See, e.g., National Conservative
Political Action Comm., supra, at 496â501; Randall v.
Sorrell, 548 U. S. 230, 253â262 (2006) (opinion of BREYER,
J.). Or to put it another way, if a law that restricts politi-
cal speech does not âavoid unnecessary abridgementâ of
First Amendment rights, Buckley, 424 U. S., at 25, it
cannot survive ârigorousâ review.
Because we find a substantial mismatch between the
Governmentâs stated objective and the means selected to
achieve it, the aggregate limits fail even under the âclosely
drawnâ test. We therefore need not parse the differences
between the two standards in this case.
2
Buckley treated the constitutionality of the $25,000
aggregate limit as contingent upon that limitâs ability to
prevent circumvention of the $1,000 base limit, describing
the aggregate limit as âno more than a corollaryâ of the
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Opinion of ROBERTS, C. J.
base limit. Id., at 38. The Court determined that circum-
vention could occur when an individual legally contributes
âmassive amounts of money to a particular candidate
through the use of unearmarked contributionsâ to entities
that are themselves likely to contribute to the candidate.
Ibid. For that reason, the Court upheld the $25,000 ag-
gregate limit.
Although Buckley provides some guidance, we think
that its ultimate conclusion about the constitutionality of
the aggregate limit in place under FECA does not control
here. Buckley spent a total of three sentences analyzing
that limit; in fact, the opinion pointed out that the consti-
tutionality of the aggregate limit âha[d] not been separately
addressed at length by the parties.â Ibid. We are now
asked to address appellantsâ direct challenge to the aggre-
gate limits in place under BCRA. BCRA is a different
statutory regime, and the aggregate limits it imposes
operate against a distinct legal backdrop.
Most notably, statutory safeguards against circumven-
tion have been considerably strengthened since Buckley
was decided, through both statutory additions and the
introduction of a comprehensive regulatory scheme. With
more targeted anticircumvention measures in place today,
the indiscriminate aggregate limits under BCRA appear
particularly heavy-handed.
The 1976 FECA Amendments, for example, added an-
other layer of base contribution limits. The 1974 version
of FECA had already capped contributions from political
committees to candidates, but the 1976 version added
limits on contributions to political committees. This
change was enacted at least âin part to prevent circumven-
tion of the very limitations on contributions that this
Court upheld in Buckley.â California Medical Assn. v.
Federal Election Commân, 453 U. S. 182, 197â198 (1981)
(plurality opinion); see also id., at 203 (Blackmun, J.,
concurring in part and concurring in judgment). Because
12 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
a donorâs contributions to a political committee are now
limited, a donor cannot flood the committee with âhugeâ
amounts of money so that each contribution the committee
makes is perceived as a contribution from him. Buckley,
supra, at 38. Rather, the donor may contribute only
$5,000 to the committee, which hardly raises the specter of
abuse that concerned the Court in Buckley. Limits on
contributions to political committees consequently create
an additional hurdle for a donor who seeks both to channel
a large amount of money to a particular candidate and to
ensure that he gets the credit for doing so.
The 1976 Amendments also added an antiprolifera-
tion rule prohibiting donors from creating or controlling
multiple affiliated political committees. See 2 U. S. C.
§441a(a)(5); 11 CFR §100.5(g)(4). The Government ac-
knowledges that this antiproliferation rule âforecloses
what would otherwise be a particularly easy and effective
means of circumventing the limits on contributions to any
particular political committee.â Brief for Appellee 46. In
effect, the rule eliminates a donorâs ability to create and
use his own political committees to direct funds in excess
of the individual base limits. It thus blocks a straightfor-
ward method of achieving the circumvention that was the
underlying concern in Buckley.
The intricate regulatory scheme that the Federal Elec-
tion Commission has enacted since Buckley further limits
the opportunities for circumvention of the base limits via
âunearmarked contributions to political committees likely
to contributeâ to a particular candidate. 424 U. S., at 38.
Although the earmarking provision, 2 U. S. C. §441a(a)(8),
was in place when Buckley was decided, the FEC has since
added regulations that define earmarking broadly. For
example, the regulations construe earmarking to include
any designation, âwhether direct or indirect, express or
implied, oral or written.â 11 CFR §110.6(b)(1). The regu-
lations specify that an individual who has contributed to a
Cite as: 572 U. S. ____ (2014) 13
Opinion of ROBERTS, C. J.
particular candidate may not also contribute to a single-
candidate committee for that candidate. §110.1(h)(1). Nor
may an individual who has contributed to a candidate also
contribute to a political committee that has supported or
anticipates supporting the same candidate, if the individ-
ual knows that âa substantial portion [of his contribution]
will be contributed to, or expended on behalf of,â that
candidate. §110.1(h)(2).
In addition to accounting for statutory and regulatory
changes in the campaign finance arena, appellantsâ chal-
lenge raises distinct legal arguments that Buckley did not
consider. For example, presumably because of its cursory
treatment of the $25,000 aggregate limit, Buckley did not
separately address an overbreadth challenge with respect
to that provision. The Court rejected such a challenge to
the base limits because of the difficulty of isolating suspect
contributions. The propriety of large contributions to in-
dividual candidates turned on the subjective intent of
donors, and the Court concluded that there was no way to
tell which donors sought improper influence over legisla-
torsâ actions. See 424 U. S., at 30. The aggregate limit, on
the other hand, was upheld as an anticircumvention
measure, without considering whether it was possible to
discern which donations might be used to circumvent the
base limits. See id., at 38. The Court never addressed
overbreadth in the specific context of aggregate limits,
where such an argument has far more force.
Given the foregoing, this case cannot be resolved merely
by pointing to three sentences in Buckley that were writ-
ten without the benefit of full briefing or argument on the
issue. See Toucey v. New York Life Ins. Co., 314 U. S. 118,
139â140 (1941) (departing from â[l]oose language and a
sporadic, ill-considered decisionâ when asked to resolve
a question âwith our eyes wide open and in the light of
full considerationâ); Hohn v. United States, 524 U. S. 236,
251 (1998) (departing from a prior decision where it
14 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
âwas rendered without full briefing or argumentâ). We
are confronted with a different statute and different
legal arguments, at a different point in the development
of campaign finance regulation. Appellantsâ sub-
stantial First Amendment challenge to the system of
aggregate limits currently in place thus merits our plenary
consideration.4
III
The First Amendment âis designed and intended to
remove governmental restraints from the arena of public
discussion, putting the decision as to what views shall be
voiced largely into the hands of each of us, . . . in the belief
that no other approach would comport with the premise of
individual dignity and choice upon which our political
system rests.â Cohen v. California, 403 U. S. 15, 24
(1971). As relevant here, the First Amendment safe-
guards an individualâs right to participate in the public
debate through political expression and political associa-
tion. See Buckley, 424 U. S., at 15. When an individual
contributes money to a candidate, he exercises both of
those rights: The contribution âserves as a general expres-
sion of support for the candidate and his viewsâ and
âserves to affiliate a person with a candidate.â Id., at
21â22.
Those First Amendment rights are important regardless
whether the individual is, on the one hand, a âlone pam-
phleteer[ ] or street corner orator[ ] in the Tom Paine
mold,â or is, on the other, someone who spends âsubstan-
ââââââ
4 The dissent contends that we should remand for development of an
evidentiary record before answering the question with which we were
presented. See post, at 28â30 (opinion of BREYER, J). But the parties
have treated the question as a purely legal one, and the Government
has insisted that the aggregate limits can be upheld under the existing
record alone. See Tr. of Oral Arg. 43, 55â56. We take the case as it
comes to us.
Cite as: 572 U. S. ____ (2014) 15
Opinion of ROBERTS, C. J.
tial amounts of money in order to communicate [his] polit-
ical ideas through sophisticatedâ means. National Con-
servative Political Action Comm., 470 U. S., at 493. Either
way, he is participating in an electoral debate that we
have recognized is âintegral to the operation of the system
of government established by our Constitution.â Buckley,
supra, at 14.
Buckley acknowledged that aggregate limits at least
diminish an individualâs right of political association. As
the Court explained, the âoverall $25,000 ceiling does
impose an ultimate restriction upon the number of candi-
dates and committees with which an individual may asso-
ciate himself by means of financial support.â 424 U. S., at
38. But the Court characterized that restriction as a
âquite modest restraint upon protected political activity.â
Ibid. We cannot agree with that characterization. An
aggregate limit on how many candidates and committees
an individual may support through contributions is not a
âmodest restraintâ at all. The Government may no more
restrict how many candidates or causes a donor may
support than it may tell a newspaper how many candi-
dates it may endorse.
To put it in the simplest terms, the aggregate limits
prohibit an individual from fully contributing to the pri-
mary and general election campaigns of ten or more can-
didates, even if all contributions fall within the base limits
Congress views as adequate to protect against corruption.
The individual may give up to $5,200 each to nine candi-
dates, but the aggregate limits constitute an outright ban
on further contributions to any other candidate (beyond
the additional $1,800 that may be spent before reaching
the $48,600 aggregate limit). At that point, the limits
deny the individual all ability to exercise his expressive
and associational rights by contributing to someone who
will advocate for his policy preferences. A donor must
limit the number of candidates he supports, and may have
16 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
to choose which of several policy concerns he will ad-
vanceâclear First Amendment harms that the dissent
never acknowledges.
It is no answer to say that the individual can simply
contribute less money to more people. To require one
person to contribute at lower levels than others because he
wants to support more candidates or causes is to impose a
special burden on broader participation in the democratic
process. And as we have recently admonished, the Gov-
ernment may not penalize an individual for ârobustly
exercis[ing]â his First Amendment rights. Davis v. Federal
Election Commân, 554 U. S. 724, 739 (2008).
The First Amendment burden is especially great for
individuals who do not have ready access to alternative
avenues for supporting their preferred politicians and
policies. In the context of base contribution limits, Buck-
ley observed that a supporter could vindicate his associa-
tional interests by personally volunteering his time and
energy on behalf of a candidate. See 424 U. S., at 22, 28.
Such personal volunteering is not a realistic alternative
for those who wish to support a wide variety of candidates
or causes. Other effective methods of supporting preferred
candidates or causes without contributing money are
reserved for a select few, such as entertainers capable of
raising hundreds of thousands of dollars in a single even-
ing. Cf. Davis, supra, at 742.5
The dissent faults this focus on âthe individualâs right to
engage in political speech,â saying that it fails to take into
account âthe publicâs interestâ in âcollective speech.â Post,
at 6 (opinion of BREYER, J). This âcollectiveâ interest is
ââââââ
5 See, e.g., Felsenthal, Obama Attends Fundraiser Hosted by Jay-Z,
Beyonce, Reuters, Sept. 18, 2012; Coleman, Kid Rock Supports Paul
Ryan at Campaign Fundraiser, Rolling Stone, Aug. 25, 2012; Mason,
Robert Duvall to Host Romney Fundraiser, L. A. Times, July 25, 2012;
Piazza, Hillary Lands 2.5M with Rocket Man, N. Y. Daily News, Apr.
10, 2008, p. 2.
Cite as: 572 U. S. ____ (2014) 17
Opinion of ROBERTS, C. J.
said to promote âa government where laws reflect the very
thoughts, views, ideas, and sentiments, the expression of
which the First Amendment protects.â Post, at 7.
But there are compelling reasons not to define the
boundaries of the First Amendment by reference to such a
generalized conception of the public good. First, the dis-
sentâs âcollective speechâ reflected in laws is of course the
will of the majority, and plainly can include laws that
restrict free speech. The whole point of the First Amend-
ment is to afford individuals protection against such in-
fringements. The First Amendment does not protect
the government, even when the government purports to
act through legislation reflecting âcollective speech.â Cf.
United States v. Alvarez, 567 U. S. ___ (2012); Wooley v.
Maynard, 430 U. S. 705 (1977); West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624 (1943).
Second, the degree to which speech is protected cannot
turn on a legislative or judicial determination that partic-
ular speech is useful to the democratic process. The First
Amendment does not contemplate such âad hoc balancing
of relative social costs and benefits.â United States v.
Stevens, 559 U. S. 460, 470 (2010); see also United States
v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818
(2000) (âWhat the Constitution says is thatâ value judg-
ments âare for the individual to make, not for the Gov-
ernment to decree, even with the mandate or approval of a
majorityâ).
Third, our established First Amendment analysis al-
ready takes account of any âcollectiveâ interest that may
justify restrictions on individual speech. Under that
accepted analysis, such restrictions are measured against
the asserted public interest (usually framed as an im-
portant or compelling governmental interest). As ex-
plained below, we do not doubt the compelling nature of
the âcollectiveâ interest in preventing corruption in the
electoral process. But we permit Congress to pursue that
18 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
interest only so long as it does not unnecessarily infringe
an individualâs right to freedom of speech; we do not trun-
cate this tailoring test at the outset.
IV
A
With the significant First Amendment costs for individ-
ual citizens in mind, we turn to the governmental inter-
ests asserted in this case. This Court has identified only
one legitimate governmental interest for restricting cam-
paign finances: preventing corruption or the appearance of
corruption. See Davis, supra, at 741; National Conserva-
tive Political Action Comm., 470 U. S., at 496â497. We
have consistently rejected attempts to suppress campaign
speech based on other legislative objectives. No matter
how desirable it may seem, it is not an acceptable govern-
mental objective to âlevel the playing field,â or to âlevel
electoral opportunities,â or to âequaliz[e] the financial
resources of candidates.â Bennett, 564 U. S., at ___ (slip
op., at 22â23); Davis, supra, at 741â742; Buckley, supra, at
56. The First Amendment prohibits such legislative at-
tempts to âfine-tun[e]â the electoral process, no matter
how well intentioned. Bennett, supra, at ___ (slip op.,
at 21).
As we framed the relevant principle in Buckley, âthe
concept that 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.â
424 U. S., at 48â49. The dissentâs suggestion that Buckley
supports the opposite proposition, see post, at 6, simply
ignores what Buckley actually said on the matter. See
also Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley, 454 U. S. 290, 295 (1981) (âBuckley
. . . made clear that contributors cannot be protected from
the possibility that others will make larger contributionsâ).
Cite as: 572 U. S. ____ (2014) 19
Opinion of ROBERTS, C. J.
Moreover, while preventing corruption or its appearance
is a legitimate objective, Congress may target only a
specific type of corruptionââquid pro quoâ corruption. As
Buckley explained, Congress may permissibly seek to rein
in âlarge contributions [that] are given to secure a political
quid pro quo from current and potential office holders.â
424 U. S., at 26. In addition to âactual quid pro quo
arrangements,â Congress may permissibly limit âthe ap-
pearance of corruption stemming from public awareness of
the opportunities for abuse inherent in a regime of large
individual financial contributionsâ to particular candi-
dates. Id., at 27; see also Citizens United, 558 U. S., at
359 (âWhen Buckley identified a sufficiently important
governmental interest in preventing corruption or the
appearance of corruption, that interest was limited to quid
pro quo corruptionâ).
Spending large sums of money in connection with elec-
tions, but not in connection with an effort to control the
exercise of an officeholderâs official duties, does not give
rise to such quid pro quo corruption. Nor does the possi-
bility that an individual who spends large sums may
garner âinfluence over or access toâ elected officials or
political parties. Id., at 359; see McConnell v. Federal
Election Commân, 540 U. S. 93, 297 (2003) (KENNEDY, J.,
concurring in judgment in part and dissenting in part).
And because the Governmentâs interest in preventing the
appearance of corruption is equally confined to the ap-
pearance of quid pro quo corruption, the Government may
not seek to limit the appearance of mere influence or
access. See Citizens United, 558 U. S., at 360.
The dissent advocates a broader conception of corrup-
tion, and would apply the label to any individual contribu-
tions above limits deemed necessary to protect âcollective
speech.â Thus, under the dissentâs view, it is perfectly fine
to contribute $5,200 to nine candidates but somehow
corrupt to give the same amount to a tenth.
20 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
It is fair to say, as Justice Stevens has, âthat we have
not always spoken about corruption in a clear or con-
sistent voice.â Id., at 447 (opinion concurring in part and
dissenting in part). The definition of corruption that we
apply today, however, has firm roots in Buckley itself. The
Court in that case upheld base contribution limits because
they targeted âthe danger of actual quid pro quo arrange-
mentsâ and âthe impact of the appearance of corruption
stemming from public awarenessâ of such a system of
unchecked direct contributions. 424 U. S., at 27. Buckley
simultaneously rejected limits on spending that was less
likely to âbe given as a quid pro quo for improper commit-
ments from the candidate.â Id., at 47. In any event, this
case is not the first in which the debate over the proper
breadth of the Governmentâs anticorruption interest has
been engaged. Compare Citizens United, 558 U. S., at
356â361 (majority opinion), with id., at 447â460 (opinion
of Stevens, J.).
The line between quid pro quo corruption and general
influence may seem vague at times, but the distinction
must be respected in order to safeguard basic First
Amendment rights. In addition, â[i]n drawing that line,
the First Amendment requires us to err on the side of
protecting political speech rather than suppressing it.â
Federal Election Commân v. Wisconsin Right to Life, 551
U. S. 449, 457 (2007) (opinion of ROBERTS, C. J.).
The dissent laments that our opinion leaves only rem-
nants of FECA and BCRA that are inadequate to combat
corruption. See post, at 2. Such rhetoric ignores the fact
that we leave the base limits undisturbed.6 Those base
ââââââ
6 The fact that this opinion does not address the base limits also be-
lies the dissentâs concern that we have silently overruled the Courtâs
holding in McConnell v. Federal Election Commân, 540 U. S. 93 (2003).
See post, at 12â13. At issue in McConnell was BCRAâs extension of the
base limits to so-called âsoft moneyââpreviously unregulated contribu-
tions to national party committees. See 540 U. S., at 142; see also post,
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Opinion of ROBERTS, C. J.
limits remain the primary means of regulating campaign
contributionsâthe obvious explanation for why the aggre-
gate limits received a scant few sentences of attention in
Buckley.7
B
âWhen the Government restricts speech, the Govern-
ment bears the burden of proving the constitutionality
of its actions.â United States v. Playboy Entertainment
Group, Inc., 529 U. S., at 816. Here, the Government
seeks to carry that burden by arguing that the aggregate
limits further the permissible objective of preventing quid
pro quo corruption.
The difficulty is that once the aggregate limits kick in,
they ban all contributions of any amount. But Congressâs
selection of a $5,200 base limit indicates its belief that
contributions of that amount or less do not create a cog-
nizable risk of corruption. If there is no corruption con-
cern in giving nine candidates up to $5,200 each, it is
difficult to understand how a tenth candidate can be re-
garded as corruptible if given $1,801, and all others cor-
ââââââ
at 31â38 (appendix A to opinion of BREYER, J.) (excerpts from
McConnell record discussing unregulated âsoft moneyâ). Our holding
about the constitutionality of the aggregate limits clearly does not
overrule McConnellâs holding about âsoft money.â
7 It would be especially odd to regard aggregate limits as essential to
enforce base limits when state campaign finance schemes typically
include base limits but not aggregate limits. Just eight of the 38 States
that have imposed base limits on contributions from individuals to
candidates have also imposed aggregate limits (excluding restrictions
on a specific subset of donors). See Conn. Gen. Stat. §9â611(c) (2013);
Me. Rev. Stat. Ann., Tit. 21âA, §1015(3) (Supp. 2013); Md. Elec. Law
Code Ann. §13â226(b) (Lexis Supp. 2013); Mass. Gen. Laws, ch. 55,
§7A(a)(5) (West 2012); N. Y. Elec. Law Ann. §14â114(8) (West Supp.
2013); R. I. Gen. Laws §17â25â10.1(a)(1) (Lexis 2013); Wis. Stat.
§11.26(4) (2007â2008); Wyo. Stat. Ann. §22â25â102(c)(ii) (2013). The
Government presents no evidence concerning the circumvention of base
limits from the 30 States with base limits but no aggregate limits.
22 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
ruptible if given a dime. And if there is no risk that addi-
tional candidates will be corrupted by donations of up to
$5,200, then the Government must defend the aggregate
limits by demonstrating that they prevent circumvention
of the base limits.
The problem is that they do not serve that function in
any meaningful way. In light of the various statutes
and regulations currently in effect, Buckleyâs fear that an
individual might âcontribute massive amounts of money to
a particular candidate through the use of unearmarked
contributionsâ to entities likely to support the candi-
date, 424 U. S., at 38, is far too speculative. Andâ
importantlyâwe âhave never accepted mere conjecture as
adequate to carry a First Amendment burden.â Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 392
(2000).
As an initial matter, there is not the same risk of quid
pro quo corruption or its appearance when money flows
through independent actors to a candidate, as when a
donor contributes to a candidate directly. When an indi-
vidual contributes to a candidate, a party committee, or a
PAC, the individual must by law cede control over the
funds. See 2 U. S. C. §441a(a)(8); 11 CFR §110.6. The
Government admits that if the funds are subsequently re-
routed to a particular candidate, such action occurs at the
initial recipientâs discretionânot the donorâs. See Brief for
Appellee 37. As a consequence, the chain of attribution
grows longer, and any credit must be shared among the
various actors along the way. For those reasons, the risk
of quid pro quo corruption is generally applicable only to
âthe narrow category of money gifts that are directed, in
some manner, to a candidate or officeholder.â McConnell,
540 U. S., at 310 (opinion of KENNEDY, J.).
Buckley nonetheless focused on the possibility that
âunearmarked contributionsâ could eventually find their
way to a candidateâs coffers. 424 U. S., at 38. Even ac-
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Opinion of ROBERTS, C. J.
cepting the validity of Buckleyâs circumvention theory, it is
hard to see how a candidate today could receive a âmassive
amount[ ] of moneyâ that could be traced back to a particu-
lar contributor uninhibited by the aggregate limits. Ibid.
The Government offers a series of scenarios in support of
that possibility. But each is sufficiently implausible that
the Government has not carried its burden of demonstrat-
ing that the aggregate limits further its anticircumvention
interest.
The primary example of circumvention, in one form or
another, envisions an individual donor who contributes
the maximum amount under the base limits to a particu-
lar candidate, say, Representative Smith. Then the donor
also channels âmassive amounts of moneyâ to Smith
through a series of contributions to PACs that have stated
their intention to support Smith. See, e.g., Brief for Appel-
lee 35â37; Tr. of Oral Arg. 4, 6.
Various earmarking and antiproliferation rules disarm
this example. Importantly, the donor may not contribute
to the most obvious PACs: those that support only Smith.
See 11 CFR §110.1(h)(1); see also §102.14(a). Nor may the
donor contribute to the slightly less obvious PACs that he
knows will route âa substantial portionâ of his contribution
to Smith. §110.1(h)(2).
The donor must instead turn to other PACs that are
likely to give to Smith. When he does so, however, he
discovers that his contribution will be significantly diluted
by all the contributions from others to the same PACs.
After all, the donor cannot give more than $5,000 to a PAC
and so cannot dominate the PACâs total receipts, as he
could when Buckley was decided. 2 U. S. C. §441a(a)(1)(C).
He cannot retain control over his contribution,
11 CFR §110.1(h)(3), direct his money âin any wayâ to Smith,
2 U. S. C. §441a(a)(8), or even imply that he would
like his money to be recontributed to Smith, 11 CFR
§110.6(b)(1). His salience as a Smith supporter has been
24 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
diminished, and with it the potential for corruption.
It is not clear how many candidates a PAC must support
before our dedicated donor can avoid being tagged with
the impermissible knowledge that âa substantial portionâ
of his contribution will go to Smith. But imagine that the
donor is one of ten equal donors to a PAC that gives the
highest possible contribution to Smith.8 The PAC may
give no more than $2,600 per election to Smith. Of that
sum, just $260 will be attributable to the donor intent on
circumventing the base limits. Thus far he has hardly
succeeded in funneling âmassive amounts of moneyâ to
Smith. Buckley, supra, at 38.
But what if this donor does the same thing via, say, 100
different PACs? His $260 contribution will balloon to
$26,000, ten times what he may contribute directly to
Smith in any given election.
This 100-PAC scenario is highly implausible. In the
first instance, it is not true that the individual donor will
necessarily have access to a sufficient number of PACs to
effectuate such a scheme. There are many PACs, but they
are not limitless. For the 2012 election cycle, the FEC
reported about 2,700 nonconnected PACs (excluding PACs
that finance independent expenditures only). And not
every PAC that supports Smith will work in this scheme:
For our donorâs pro rata share of a PACâs contribution to
Smith to remain meaningful, the PAC must be funded by
only a small handful of donors. The antiproliferation
rules, which were not in effect when Buckley was decided,
prohibit our donor from creating 100 pro-Smith PACs of
his own, or collaborating with the nine other donors to do
ââââââ
8 Even those premises are generous because they assume that the
donor contributes to non-multicandidate PACs, which are relatively
rare. Multicandidate PACs, by contrast, must have more than 50
contributors. 11 CFR §100.5(e)(3). The more contributors, of course,
the more the donorâs share in any eventual contribution to Smith is
diluted.
Cite as: 572 U. S. ____ (2014) 25
Opinion of ROBERTS, C. J.
so. See 2 U. S. C. §441a(a)(5) (âall contributions made by
political committees established or financed or maintained
or controlled by . . . any other person, or by any group of
such persons, shall be considered to have been made by a
single political committeeâ).
Moreover, if 100 PACs were to contribute to Smith and
few other candidates, and if specific individuals like our
ardent Smith supporter were to contribute to each, the
FEC could weigh those âcircumstantial factorsâ to deter-
mine whether to deem the PACs affiliated. 11 CFR
§100.5(g)(4)(ii). The FECâs analysis could take account
of a âcommon or overlapping membershipâ and âsimilar
patterns of contributions or contributors,â among other
considerations. §§100.5(g)(4)(ii)(D), (J). The FEC has in
the past initiated enforcement proceedings against con-
tributors with such suspicious patterns of PAC donations.
See, e.g., Conciliation Agreement, In re Riley, Matters
Under Review 4568, 4633, 4634, 4736 (FEC, Dec. 19,
2001).
On a more basic level, it is hard to believe that a rational
actor would engage in such machinations. In the example
described, a dedicated donor spent $500,000âdonating
the full $5,000 to 100 different PACsâto add just $26,000
to Smithâs campaign coffers. That same donor, mean-
while, could have spent unlimited funds on independent
expenditures on behalf of Smith. See Buckley, 424 U. S.,
at 44â51. Indeed, he could have spent his entire $500,000
advocating for Smith, without the risk that his selected
PACs would choose not to give to Smith, or that he would
have to share credit with other contributors to the PACs.
We have said in the context of independent expenditures
that â â[t]he absence of prearrangement and coordination of
an expenditure with the candidate or his agent . . . un-
dermines the value of the expenditure to the candidate.â â
Citizens United, 558 U. S., at 357 (quoting Buckley, supra,
at 47). But probably not by 95 percent. And at least from
26 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
the donorâs point of view, it strikes us as far more likely
that he will want to see his full $500,000 spent on behalf
of his favored candidateâeven if it must be spent inde-
pendentlyârather than see it diluted to a small fraction so
that it can be contributed directly by someone else.9
Another circumvention example is the one that appar-
ently motivated the District Court. As the District Court
crafted the example, a donor gives a $500,000 check to
a joint fundraising committee composed of a candidate, a
national party committee, and âmost of the partyâs state
party committeesâ (actually, 47 of the 50). 893 F. Supp.
2d, at 140. The committees divide up the money so that
each one receives the maximum contribution permissible
under the base limits, but then each transfers its allocated
portion to the same single committee. That committee
uses the money for coordinated expenditures on behalf of a
particular candidate. If that scenario âseem[s] unlikely,â
the District Court thought so, too. Ibid. But because the
District Court could âimagineâ that chain of events, it held
that the example substantiated the Governmentâs circum-
vention concerns. Ibid.
One problem, however, is that the District Courtâs spec-
ulation relies on illegal earmarking. Lest there be any
confusion, a joint fundraising committee is simply a mech-
anism for individual committees to raise funds collectively,
not to circumvent base limits or earmarking rules. See 11
ââââââ
9 The Justice Department agrees. As Acting Assistant Attorney Gen-
eral Mythili Raman recently testified before Congress: âWe anticipate
seeing fewer cases of conduit contributions directly to campaign com-
mittees or parties, because individuals or corporations who wish to
influence elections or officials will no longer need to attempt to do so
through conduit contribution schemes that can be criminally prosecut-
ed. Instead, they are likely to simply make unlimited contributions to
Super PACs or 501(c)s.â Hearing on Current Issues in Campaign
Finance Law Enforcement before the Subcommittee on Crime and
Terrorism of the Senate Committee on the Judiciary, 113th Cong., 1st
Sess., 3 (2013).
Cite as: 572 U. S. ____ (2014) 27
Opinion of ROBERTS, C. J.
CFR §102.17(c)(5). Under no circumstances may a contri-
bution to a joint fundraising committee result in an alloca-
tion that exceeds the contribution limits applicable to
its constituent parts; the committee is in fact required
to return any excess funds to the contributor. See
§102.17(c)(6)(i).
The District Court assumed compliance with the specific
allocation rules governing joint fundraising committees,
but it expressly based its example on the premise that the
donor would telegraph his desire to support one candidate
and that âmany separate entities would willingly serve as
conduits for a single contributorâs interests.â 893 F. Supp.
2d, at 140. Regardless whether so many distinct entities
would cooperate as a practical matter, the earmarking
provision prohibits an individual from directing funds
âthrough an intermediary or conduitâ to a particular can-
didate. 2 U. S. C. §441a(8). Even the âimplicit[ ]â agree-
ment imagined by the District Court, 893 F. Supp. 2d, at
140, would trigger the earmarking provision. See 11 CFR
§110.6(b)(1). So this circumvention scenario could not
succeed without assuming that nearly 50 separate party
committees would engage in a transparent violation of the
earmarking rules (and that they would not be caught if
they did).
Moreover, the District Court failed to acknowledge that
its $500,000 example cannot apply to most candidates. It
crafted the example around a presidential candidate, for
whom donations in the thousands of dollars may not seem
remarkableâespecially in comparison to the nearly $1.4
billion spent by the 2012 presidential candidates. The
same example cannot, however, be extrapolated to most
House and Senate candidates. Like contributions, coordi-
nated expenditures are limited by statute, with different
limits based on the State and the office. See 2 U. S. C.
§441a(d)(3). The 2013 coordinated expenditure limit for
most House races is $46,600, well below the $500,000 in
28 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
coordinated expenditures envisioned by the District Court.
The limit for Senate races varies significantly based on
state population. See 78 Fed. Reg. 8531 (2013). A scheme
of the magnitude imagined by the District Court would be
possible even in theory for no House candidates and the
Senate candidates from just the 12 most populous States.
Ibid.
Further, to the extent that the law does not foreclose the
scenario described by the District Court, experience and
common sense do. The Government provides no reason to
believe that many state parties would willingly participate
in a scheme to funnel money to another Stateâs candidates.
A review of FEC data of Republican and Democratic state
party committees for the 2012 election cycle reveals just
12 total instances in which a state party committee con-
tributed to a House or Senate candidate in another State.
No surprise there. The Iowa Democratic Party, for exam-
ple, has little reason to transfer money to the California
Democratic Party, especially when the Iowa Democratic
Party would be barred for the remainder of the election
cycle from receiving another contribution for its own activ-
ities from the particular donor.
These scenarios, along with others that have been sug-
gested, are either illegal under current campaign finance
laws or divorced from reality. The three examples posed
by the dissent are no exception. The dissent does not
explain how the large sums it postulates can be legally
rerouted to a particular candidate, why most state com-
mittees would participate in a plan to redirect their dona-
tions to a candidate in another State, or how a donor or
group of donors can avoid regulations prohibiting con-
tributions to a committee âwith the knowledge that a
substantial portionâ of the contribution will support a
candidate to whom the donor has already contributed,
11 CFR §110.1(h)(2).
The dissent argues that such knowledge may be difficult
Cite as: 572 U. S. ____ (2014) 29
Opinion of ROBERTS, C. J.
to prove, pointing to eight FEC cases that did not proceed
because of insufficient evidence of a donorâs incriminating
knowledge. See post, at 24â25. It might be that such
guilty knowledge could not be shown because the donors
were not guiltyâa possibility that the dissent does not
entertain. In any event, the donors described in those
eight cases were typically alleged to have exceeded the
base limits by $5,000 or less. The FECâs failure to find the
requisite knowledge in those cases hardly means that the
agency will be equally powerless to prevent a scheme in
which a donor routes millions of dollars in excess of the
base limits to a particular candidate, as in the dissentâs
âExample Two.â And if an FEC official cannot establish
knowledge of circumvention (or establish affiliation) when
the same ten donors contribute $10,000 each to 200 newly
created PACs, and each PAC writes a $10,000 check to the
same ten candidatesâthe dissentâs âExample Threeââ
then that official has not a heart but a head of stone. See
post, at 19â20, 25.
The dissent concludes by citing three briefs for the
proposition that, even with the aggregate limits in place,
individuals âhave transferred large sums of money to
specific candidatesâ in excess of the base limits. Post, at
26. But the cited sources do not provide any real-world
examples of circumvention of the base limits along the
lines of the various hypotheticals. The dearth of FEC
prosecutions, according to the dissent, proves only that
people are getting away with it. And the violations that
surely must be out there elude detection âbecause in the
real world, the methods of achieving circumvention are
more subtle and more complexâ than the hypothetical
examples. Ibid. This sort of speculation, however, cannot
justify the substantial intrusion on First Amendment
rights at issue in this case.
Buckley upheld aggregate limits only on the ground that
they prevented channeling money to candidates beyond
30 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
the base limits. The absence of such a prospect today
belies the Governmentâs asserted objective of preventing
corruption or its appearance. The improbability of cir-
cumvention indicates that the aggregate limits instead
further the impermissible objective of simply limiting the
amount of money in political campaigns.
C
Quite apart from the foregoing, the aggregate limits
violate the First Amendment because they are not âclosely
drawn to avoid unnecessary abridgment of associational
freedoms.â Buckley, 424 U. S., at 25. In the First
Amendment context, fit matters. Even when the Court is
not applying strict scrutiny, we still require âa fit that is
not necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope
is âin proportion to the interest served,â . . . that employs
not necessarily the least restrictive means but . . . a means
narrowly tailored to achieve the desired objective.â Board
of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469,
480 (1989) (quoting In re R. M. J., 455 U. S. 191, 203
(1982)). Here, because the statute is poorly tailored to the
Governmentâs interest in preventing circumvention of the
base limits, it impermissibly restricts participation in
the political process.
1
The Government argues that the aggregate limits are
justified because they prevent an individual from giving to
too many initial recipients who might subsequently recon-
tribute a donation. After all, only recontributed funds can
conceivably give rise to circumvention of the base limits.
Yet all indications are that many types of recipients have
scant interest in regifting donations they receive.
Some figures might be useful to put the risk of circum-
vention in perspective. We recognize that no data can be
Cite as: 572 U. S. ____ (2014) 31
Opinion of ROBERTS, C. J.
marshaled to capture perfectly the counterfactual world in
which aggregate limits do not exist. But, as we have noted
elsewhere, we can nonetheless ask âwhether experience
under the present law confirms a serious threat of abuse.â
Federal Election Commân v. Colorado Republican Federal
Campaign Comm., 533 U. S. 431, 457 (2001). It does not.
Experience suggests that the vast majority of contri-
butions made in excess of the aggregate limits are likely
to be retained and spent by their recipients rather than
rerouted to candidates.
In the 2012 election cycle, federal candidates, political
parties, and PACs spent a total of $7 billion, according to
the FEC. In particular, each national political partyâs
spending ran in the hundreds of millions of dollars. The
National Republican Senatorial Committee (NRSC), Na-
tional Republican Congressional Committee (NRCC),
Democratic Senatorial Campaign Committee (DSCC), and
Democratic Congressional Campaign Committee (DCCC),
however, spent less than $1 million each on direct candi-
date contributions and less than $10 million each on coor-
dinated expenditures. Brief for NRSC et al. as Amici
Curiae 23, 25 (NRSC Brief). Including both coordinated
expenditures and direct candidate contributions, the
NRSC and DSCC spent just 7% of their total funds on
contributions to candidates and the NRCC and DCCC
spent just 3%.
Likewise, as explained previously, state parties rarely
contribute to candidates in other States. In the 2012
election cycle, the Republican and Democratic state party
committees in all 50 States (and the District of Columbia)
contributed a paltry $17,750 to House and Senate candi-
dates in other States. The state party committees spent
over half a billion dollars over the same time period, of
which the $17,750 in contributions to other Statesâ candi-
dates constituted just 0.003%.
As with national and state party committees, candidates
32 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
contribute only a small fraction of their campaign funds
to other candidates. Authorized candidate committees
may support other candidates up to a $2,000 base limit. 2
U. S. C. §432(e)(3)(B). In the 2012 election, House candi-
dates spent a total of $1.1 billion. Candidate-to-candidate
contributions among House candidates totaled $3.65
million, making up just 0.3% of candidatesâ overall spend-
ing. NRSC Brief 29. The most that any one individual
candidate received from all other candidates was around
$100,000. Brief for Appellee 39. The fact is that candi-
dates who receive campaign contributions spend most of
the money on themselves, rather than passing along dona-
tions to other candidates. In this arena at least, charity
begins at home.10
Based on what we can discern from experience, the
indiscriminate ban on all contributions above the aggre-
gate limits is disproportionate to the Governmentâs inter-
est in preventing circumvention. The Government has not
given us any reason to believe that parties or candidates
would dramatically shift their priorities if the aggregate
limits were lifted. Absent such a showing, we cannot
conclude that the sweeping aggregate limits are appropri-
ately tailored to guard against any contributions that
might implicate the Governmentâs anticircumvention
interest.
A final point: It is worth keeping in mind that the base
limits themselves are a prophylactic measure. As we have
ââââââ
10 In addition, the percentage of contributions above the aggregate
limits that even could be used for circumvention is limited by the fact
that many of the modes of potential circumvention can be used only
once each election. For example, if one donor gives $2,600 to 100
candidates with safe House seats in the hopes that each candidate will
reroute $2,000 to Representative Smith, a candidate in a contested
district, no other donor can do the same, because the candidates in the
safe seats will have exhausted their permissible contributions to Smith.
So there is no risk that the circumvention scheme will repeat itself with
multiple other would-be donors to Smith.
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Opinion of ROBERTS, C. J.
explained, ârestrictions on direct contributions are preven-
tative, because few if any contributions to candidates will
involve quid pro quo arrangements.â Citizens United, 558
U. S., at 357. The aggregate limits are then layered on
top, ostensibly to prevent circumvention of the base limits.
This âprophylaxis-upon-prophylaxis approachâ requires
that we be particularly diligent in scrutinizing the lawâs
fit. Wisconsin Right to Life, 551 U. S., at 479 (opinion of
ROBERTS, C. J.); see McConnell, 540 U. S., at 268â269
(opinion of THOMAS, J.).
2
Importantly, there are multiple alternatives available to
Congress that would serve the Governmentâs anticircum-
vention interest, while avoiding âunnecessary abridgmentâ
of First Amendment rights. Buckley, 424 U. S., at 25.
The most obvious might involve targeted restrictions on
transfers among candidates and political committees.
There are currently no such limits on transfers among
party committees and from candidates to party commit-
tees. See 2 U. S. C. §441a(a)(4); 11 CFR §113.2(c). Per-
haps for that reason, a central concern of the District
Court, the Government, multiple amici curiae, and the
dissent has been the ability of party committees to trans-
fer money freely. If Congress agrees that this is problem-
atic, it might tighten its permissive transfer rules. Doing
so would impose a lesser burden on First Amendment
rights, as compared to aggregate limits that flatly ban
contributions beyond certain levels. And while the Gov-
ernment has not conceded that transfer restrictions would
be a perfect substitute for the aggregate limits, it has
recognized that they would mitigate the risk of circumven-
tion. See Tr. of Oral Arg. 29.
One possible option for restricting transfers would be to
require contributions above the current aggregate limits to
be deposited into segregated, nontransferable accounts
34 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
and spent only by their recipients. Such a solution would
address the same circumvention possibilities as the cur-
rent aggregate limits, while not completely barring contri-
butions beyond the aggregate levels. In addition (or as an
alternative), if Congress believes that circumvention is
especially likely to occur through creation of a joint fund-
raising committee, it could require that funds received
through those committees be spent by their recipients (or
perhaps it could simply limit the size of joint fundraising
committees). Such alternatives to the aggregate limits
properly refocus the inquiry on the delinquent actor: the
recipient of a contribution within the base limits, who then
routes the money in a manner that undermines those
limits. See Citizens United, supra, at 360â361; cf. Bart-
nicki v. Vopper, 532 U. S. 514, 529â530 (2001).
Indeed, Congress has adopted transfer restrictions, and
the Court has upheld them, in the context of state party
spending. See 2 U. S. C. §441i(b). So-called âLevin fundsâ
are donations permissible under state law that may be
spent on certain federal election activityânamely, voter
registration and identification, get-out-the-vote efforts, or
generic campaign activities. Levin funds are raised directly
by the state or local party committee that ultimately
spends them. §441i(b)(2)(B)(iv). That means that other
party committees may not transfer Levin funds, solicit
Levin funds on behalf of the particular state or local com-
mittee, or engage in joint fundraising of Levin funds. See
McConnell, 540 U. S., at 171â173. McConnell upheld
those transfer restrictions as âjustifiable anticircumven-
tion measures,â though it acknowledged that they posed
some associational burdens. Id., at 171. Here, a narrow
transfer restriction on contributions that could otherwise
be recontributed in excess of the base limits could rely on a
similar justification.
Other alternatives might focus on earmarking. Many of
the scenarios that the Government and the dissent hy-
Cite as: 572 U. S. ____ (2014) 35
Opinion of ROBERTS, C. J.
pothesize involve at least implicit agreements to circum-
vent the base limitsâagreements that are already prohib-
ited by the earmarking rules. See 11 CFR §110.6. The
FEC might strengthen those rules further by, for exam-
ple, defining how many candidates a PAC must support
in order to ensure that âa substantial portionâ of a do-
norâs contribution is not rerouted to a certain candidate.
§110.1(h)(2). Congress might also consider a modified
version of the aggregate limits, such as one that prohibits
donors who have contributed the current maximum sums
from further contributing to political committees that have
indicated they will support candidates to whom the donor
has already contributed. To be sure, the existing earmark-
ing provision does not define âthe outer limit of accept-
able tailoring.â Colorado Republican Federal Campaign
Comm., 533 U. S., at 462. But tighter rules could have a
significant effect, especially when adopted in concert with
other measures.
We do not mean to opine on the validity of any particu-
lar proposal. The point is that there are numerous al-
ternative approaches available to Congress to prevent
circumvention of the base limits.
D
Finally, disclosure of contributions minimizes the poten-
tial for abuse of the campaign finance system. Disclosure
requirements are in part âjustified based on a governmen-
tal interest in âprovid[ing] the electorate with informationâ
about the sources of election-related spending.â Citizens
United, 558 U. S., at 367 (quoting Buckley, supra, at 66).
They may also âdeter actual corruption and avoid the
appearance of corruption by exposing large contributions
and expenditures to the light of publicity.â Id., at 67.
Disclosure requirements burden speech, butâunlike the
aggregate limitsâthey do not impose a ceiling on speech.
Citizens United, supra, at 366; but see McConnell, supra,
36 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
at 275â277 (opinion of THOMAS, J.). For that reason,
disclosure often represents a less restrictive alternative to
flat bans on certain types or quantities of speech. See,
e.g., Federal Election Commân v. Massachusetts Citizens
for Life, Inc., 479 U. S. 238, 262 (1986).
With modern technology, disclosure now offers a partic-
ularly effective means of arming the voting public with
information. In 1976, the Court observed that Congress
could regard disclosure as âonly a partial measure.â Buck-
ley, 424 U. S., at 28. That perception was understandable
in a world in which information about campaign contribu-
tions was filed at FEC offices and was therefore virtually
inaccessible to the average member of the public. See
Brief for Cause of Action Institute as Amicus Curiae 15â
16. Today, given the Internet, disclosure offers much more
robust protections against corruption. See Citizens United,
supra, at 370â371. Reports and databases are availa-
ble on the FECâs Web site almost immediately after they
are filed, supplemented by private entities such as Open-
Secrets.org and FollowTheMoney.org. Because massive
quantities of information can be accessed at the click of a
mouse, disclosure is effective to a degree not possible at
the time Buckley, or even McConnell, was decided.
The existing aggregate limits may in fact encourage the
movement of money away from entities subject to dis-
closure. Because individualsâ direct contributions are
limited, would-be donors may turn to other avenues for
political speech. See Citizens United, supra, at 364. Indi-
viduals can, for example, contribute unlimited amounts to
501(c) organizations, which are not required to publicly
disclose their donors. See 26 U. S. C. §6104(d)(3). Such
organizations spent some $300 million on independent
expenditures in the 2012 election cycle.
V
At oral argument, the Government shifted its focus from
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Opinion of ROBERTS, C. J.
Buckleyâs anticircumvention rationale to an argument that
the aggregate limits deter corruption regardless of their
ability to prevent circumvention of the base limits. See Tr.
of Oral Arg. 29â30, 50â52. The Government argued that
there is an opportunity for corruption whenever a large
check is given to a legislator, even if the check consists of
contributions within the base limits to be appropriately
divided among numerous candidates and committees. The
aggregate limits, the argument goes, ensure that the check
amount does not become too large. That new rationale for
the aggregate limitsâembraced by the dissent, see post, at
15â17âdoes not wash. It dangerously broadens the cir-
cumscribed definition of quid pro quo corruption articu-
lated in our prior cases, and targets as corruption the
general, broad-based support of a political party.
In analyzing the base limits, Buckley made clear that
the risk of corruption arises when an individual makes
large contributions to the candidate or officeholder him-
self. See 424 U. S., at 26â27. Buckleyâs analysis of the
aggregate limit under FECA was similarly confined. The
Court noted that the aggregate limit guarded against an
individualâs funnelingâthrough circumventionââmassive
amounts of money to a particular candidate.â Id., at 38
(emphasis added). We have reiterated that understanding
several times. See, e.g., National Conservative Political
Action Comm., 470 U. S., at 497 (quid pro quo corruption
occurs when â[e]lected officials are influenced to act con-
trary to their obligations of office by the prospect of finan-
cial gain to themselves or infusions of money into their
campaignsâ (emphasis added)); Citizens Against Rent
Control/Coalition for Fair Housing v. Berkeley, 454 U. S.
290, 297 (1981) (Buckleyâs holding that contribution limits
are permissible ârelates to the perception of undue influ-
ence of large contributors to a candidateâ); McConnell, 540
U. S., at 296 (opinion of KENNEDY, J.) (quid pro quo cor-
ruption in Buckley involved âcontributions that flowed to a
38 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
particular candidateâs benefitâ (emphasis added)).
Of course a candidate would be pleased with a donor
who contributed not only to the candidate himself, but also
to other candidates from the same party, to party commit-
tees, and to PACs supporting the party. But there is a
clear, administrable line between money beyond the base
limits funneled in an identifiable way to a candidateâfor
which the candidate feels obligatedâand money within
the base limits given widely to a candidateâs partyâfor
which the candidate, like all other members of the party,
feels grateful.
When donors furnish widely distributed support within
all applicable base limits, all members of the party or
supporters of the cause may benefit, and the leaders of the
party or cause may feel particular gratitude. That grati-
tude stems from the basic nature of the party system, in
which party members join together to further common
political beliefs, and citizens can choose to support a party
because they share some, most, or all of those beliefs. See
Tashjian v. Republican Party of Conn., 479 U. S. 208, 214â
216 (1986). To recast such shared interest, standing
alone, as an opportunity for quid pro quo corruption would
dramatically expand government regulation of the politi-
cal process. Cf. California Democratic Party v. Jones, 530
U. S. 567, 572â573 (2000) (recognizing the Governmentâs
ârole to play in structuring and monitoring the election
process,â but rejecting âthe proposition that party affairs
are public affairs, free of First Amendment protectionsâ).
The Government suggests that it is the solicitation of
large contributions that poses the danger of corruption,
see Tr. of Oral Arg. 29â30, 38â39, 50â51; see also post, at
15â16, 20, but the aggregate limits are not limited to any
direct solicitation by an officeholder or candidate. Cf.
McConnell, supra, at 298â299, 308 (opinion of KENNEDY,
J.) (rejecting a ban on âsoft moneyâ contributions to na-
tional parties, but approving a ban on the solicitation of
Cite as: 572 U. S. ____ (2014) 39
Opinion of ROBERTS, C. J.
such contributions as âa direct and necessary regulation of
federal candidatesâ and officeholdersâ receipt of quidsâ).
We have no occasion to consider a law that would specifi-
cally ban candidates from soliciting donationsâwithin the
base limitsâthat would go to many other candidates, and
would add up to a large sum. For our purposes here, it is
enough that the aggregate limits at issue are not directed
specifically to candidate behavior.
* * *
For the past 40 years, our campaign finance jurispru-
dence has focused on the need to preserve authority for
the Government to combat corruption, without at the
same time compromising the political responsiveness at
the heart of the democratic process, or allowing the Gov-
ernment to favor some participants in that process over
others. As Edmund Burke explained in his famous speech
to the electors of Bristol, a representative owes constitu-
ents the exercise of his âmature judgment,â but judgment
informed by âthe strictest union, the closest correspond-
ence, and the most unreserved communication with his
constituents.â The Speeches of the Right Hon. Edmund
Burke 129â130 (J. Burke ed. 1867). Constituents have the
right to support candidates who share their views and
concerns. Representatives are not to follow constituent
orders, but can be expected to be cognizant of and respon-
sive to those concerns. Such responsiveness is key to the
very concept of self-governance through elected officials.
The Government has a strong interest, no less critical to
our democratic system, in combatting corruption and its
appearance. We have, however, held that this interest
must be limited to a specific kind of corruptionâquid pro
quo corruptionâin order to ensure that the Governmentâs
efforts do not have the effect of restricting the First
Amendment right of citizens to choose who shall govern
them. For the reasons set forth, we conclude that the
40 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Opinion of ROBERTS, C. J.
aggregate limits on contributions do not further the only
governmental interest this Court accepted as legitimate in
Buckley. They instead intrude without justification on a
citizenâs ability to exercise âthe most fundamental First
Amendment activities.â Buckley, 424 U. S., at 14.
The judgment of the District Court is reversed, and the
case is remanded for further proceedings.
It is so ordered.
Cite as: 572 U. S. ____ (2014) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12â536
_________________
SHAUN MCCUTCHEON, ET AL., APPELLANTS v.
FEDERAL ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[April 2, 2014]
JUSTICE THOMAS, concurring in the judgment.
I adhere to the view that this Courtâs decision in Buckley
v. Valeo, 424 U. S. 1 (1976) (per curiam), denigrates core
First Amendment speech and should be overruled. See
Randall v. Sorrell, 548 U. S. 230, 265â267 (2006)
(THOMAS, J., concurring in judgment); Federal Election
Commân v. Beaumont, 539 U. S. 146, 164â165 (2003)
(THOMAS, J., dissenting); Federal Election Commân v.
Colorado Republican Federal Campaign Comm., 533 U. S.
431, 465â466 (2001) (Colorado II) (THOMAS, J., dissent-
ing); Nixon v. Shrink Missouri Government PAC, 528 U. S.
377, 412â420 (2000) (THOMAS, J., dissenting); Colorado
Republican Federal Campaign Comm. v. Federal Election
Commân, 518 U. S. 604, 635â640 (1996) (Colorado I )
(THOMAS, J., concurring in judgment and dissenting in
part).
Political speech is â âthe primary object of First Amend-
ment protectionâ â and âthe lifeblood of a self-governing
people.â Colorado II, supra, at 465â466 (THOMAS, J.,
dissenting). Contributions to political campaigns, no less
than direct expenditures, âgenerate essential political
speechâ by fostering discussion of public issues and can-
didate qualifications. Shrink Missouri, supra, at 412
(THOMAS, J., dissenting); see also id., at 410â411. Buckley
itself recognized that both contribution and expenditure
2 MCCUTCHEON v. FEDERAL ELECTION COMMâN
THOMAS, J., concurring in judgment
limits âoperate in an area of the most fundamental First
Amendment activitiesâ and âimplicate fundamental First
Amendment interests.â 424 U. S., at 14, 23. But instead
of treating political giving and political spending alike,
Buckley distinguished the two, embracing a bifurcated
standard of review under which contribution limits receive
less rigorous scrutiny. Id., at 25.
As I have explained before, â[t]he analytic foundation of
Buckley . . . was tenuous from the very beginning and has
only continued to erode in the intervening years.â Shrink
Missouri, supra, at 412 (THOMAS, J., dissenting). To
justify a lesser standard of review for contribution limits,
Buckley relied on the premise that contributions are dif-
ferent in kind from direct expenditures. None of the
Courtâs bases for that premise withstands careful review.
The linchpin of the Courtâs analysis was its assertion that
â[w]hile contributions may result in political expression if
spent by a candidate or an association to present views to
the voters, the transformation of contributions into politi-
cal debate involves speech by someone other than the
contributor.â 424 U. S., at 21. But that â âspeech by
proxyâ â rationale quickly breaks down, given that â[e]ven
in the case of a direct expenditure, there is usually some
go-between that facilitates the dissemination of the
spenderâs messageâfor instance, an advertising agency or
a television station.â Colorado I, supra, at 638â639 (opin-
ion of THOMAS, J.). Moreover, we have since rejected the
â âproxy speechâ â approach as affording insufficient First
Amendment protection to âthe voices of those of modest
means as opposed to those sufficiently wealthy to be able
to buy expensive media ads with their own resources.â
Federal Election Commân v. National Conservative Politi-
cal Action Comm., 470 U. S. 480, 495 (1985); see Shrink
Missouri, supra, at 413â414 (THOMAS, J., dissenting).
The remaining justifications Buckley provided are also
flawed. For example, Buckley claimed that contribution
Cite as: 572 U. S. ____ (2014) 3
THOMAS, J., concurring in judgment
limits entail only a âmarginalâ speech restriction because
â[a] contribution serves as a general expression of support
for the candidate and his views, but does not communicate
the underlying basis for the support.â 424 U. S., at 20,
21. But this Court has never required a speaker to explain
the reasons for his position in order to obtain full First
Amendment protection. Instead, we have consistently
held that speech is protected even âwhen the underlying
basis for a position is not given.â Shrink Missouri, supra,
at 415, n. 3 (THOMAS, J., dissenting); see, e.g., City of
Ladue v. Gilleo, 512 U. S. 43, 46 (1994) (sign reading âFor
Peace in the Gulf â); Texas v. Johnson, 491 U. S. 397, 415â
416 (1989) (flag burning); Tinker v. Des Moines Independ-
ent Community School Dist., 393 U. S. 503, 510â511
(1969) (black armband signifying opposition to Vietnam
War); see also Colorado I, supra, at 640 (opinion of
THOMAS, J.) (âEven a pure message of support, unadorned
with reasons, is valuable to the democratic processâ)
Equally unpersuasive is Buckleyâs suggestion that con-
tribution limits warrant less stringent review because
â[t]he quantity of communication by the contributor does
not increase perceptibly with the size of his contribution,â
and â[a]t most, the size of the contribution provides a very
rough index of the intensity of the contributorâs support
for the candidate.â 424 U. S., at 21. Contributions do in-
crease the quantity of communication by âamplifying the
voice of the candidateâ and âhelp[ing] to ensure the dis-
semination of the messages that the contributor wishes to
convey.â Shrink Missouri, supra, at 415 (THOMAS, J.,
dissenting). They also serve as a quantifiable metric of
the intensity of a particular contributorâs support, as
demonstrated by the frequent practice of giving different
amounts to different candidates. Buckley simply failed to
recognize that âwe have accorded full First Amendment
protection to expressions of intensity.â Id., at 415, n. 3;
see also Cohen v. California, 403 U. S. 15, 25â26 (1971)
4 MCCUTCHEON v. FEDERAL ELECTION COMMâN
THOMAS, J., concurring in judgment
(protecting the use of an obscenity for emphasis).
Although todayâs decision represents a faithful applica-
tion of our precedents, the pluralityâs discussion of Buckley
omits any reference to these discarded rationales. In-
stead, the plurality alludes only to Buckleyâs last remain-
ing reason for devaluing political contributions relative to
expenditures. See ante, at 8 (quoting Buckley, 424 U. S.,
at 21). The relevant sentence from Buckley reads as
follows:
âA limitation on the amount of money a person may
give to a candidate or campaign organization thus in-
volves little direct restraint on his political commu-
nication, for it permits the symbolic expression of
support evidenced by a contribution but does not in
any way infringe the contributorâs freedom to discuss
candidates and issues.â Ibid.
That proposition, read in full, cannot be squared with a
key premise of todayâs decision.
Among the Governmentâs justifications for the aggregate
limits set forth in the Bipartisan Campaign Reform Act of
2002 (BCRA) is that âan individual can engage in the
âsymbolic act of contributingâ to as many entities as he
wishes.â Brief for Appellee 20. That is, the Government
contends that aggregate limits are constitutional as long
as an individual can still contribute some token amount (a
dime, for example) to each of his preferred candidates.
The plurality, quite correctly, rejects that argument,
noting that â[i]t is no answer to say that the individual can
simply contribute less money to more people.â Ante, at 16.
That is so because â[t]o require one person to contribute at
lower levels than others because he wants to support more
candidates or causes is to impose a special burden on
broader participation in the democratic process.â Ibid.
What the plurality does not recognize is that the same
logic also defeats the reasoning from Buckley on which the
Cite as: 572 U. S. ____ (2014) 5
THOMAS, J., concurring in judgment
plurality purports to rely. Under the pluralityâs analysis,
limiting the amount of money a person may give to a
candidate does impose a direct restraint on his political
communication; if it did not, the aggregate limits at issue
here would not create âa special burden on broader partic-
ipation in the democratic process.â Ibid. I am wholly in
agreement with the pluralityâs conclusion on this point:
â[T]he Government may not penalize an individual for
ârobustly exercis[ing]â his First Amendment rights.â Ibid.
(quoting Davis v. Federal Election Commân, 554 U. S. 724,
739 (2008)). I regret only that the plurality does not
acknowledge that todayâs decision, although purporting
not to overrule Buckley, continues to chip away at its
footings.
In sum, what remains of Buckley is a rule without a
rationale. Contributions and expenditures are simply
âtwo sides of the same First Amendment coin,â and our ef-
forts to distinguish the two have produced mere âword
gamesâ rather than any cognizable principle of constitu-
tional law. Buckley, supra, at 241, 244 (Burger, C. J.,
concurring in part and dissenting in part). For that rea-
son, I would overrule Buckley and subject the aggregate
limits in BCRA to strict scrutiny, which they would surely
fail. See Colorado I, 518 U. S., at 640â641 (opinion of
THOMAS, J.) (âI am convinced that under traditional strict
scrutiny, broad prophylactic caps on both spending and
giving in the political process . . . are unconstitutionalâ).
This case represents yet another missed opportunity to
right the course of our campaign finance jurisprudence by
restoring a standard that is faithful to the First Amend-
ment. Until we undertake that reexamination, we remain
in a âhalfway houseâ of our own design. Shrink Missouri,
528 U. S., at 410 (KENNEDY, J., dissenting). For these
reasons, I concur only in the judgment.
Cite as: 572 U. S. ____ (2014) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12â536
_________________
SHAUN MCCUTCHEON, ET AL., APPELLANTS v.
FEDERAL ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[April 2, 2014]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Nearly 40 years ago in Buckley v. Valeo, 424 U. S. 1
(1976) (per curiam), this Court considered the constituÂ
tionality of laws that imposed limits upon the overall
amount a single person can contribute to all federal candiÂ
dates, political parties, and committees taken together.
The Court held that those limits did not violate the ConÂ
stitution. Id., at 38; accord, McConnell v. Federal Election
Commân, 540 U. S. 93, 138, n. 40, 152â153, n. 48 (2003)
(citing with approval Buckleyâs aggregate limits holding).
The Buckley Court focused upon the same problem that
concerns the Court today, and it wrote:
âThe overall $25,000 ceiling does impose an ultimate
restriction upon the number of candidates and comÂ
mittees with which an individual may associate himÂ
self 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 contribute
massive amounts of money to a particular candidate
through the use of unearmarked contributions to poÂ
litical committees likely to contribute to that candiÂ
date, or huge contributions to the candidateâs political
party. The limited, additional restriction on associaÂ
2 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
tional freedom imposed by the overall ceiling is thus
no more than a corollary of the basic individual conÂ
tribution limitation that we have found to be constituÂ
tionally valid.â 424 U. S., at 38.
Today a majority of the Court overrules this holding. It
is wrong to do so. Its conclusion rests upon its own, not a
record-based, view of the facts. Its legal analysis is faulty:
It misconstrues the nature of the competing constitutional
interests at stake. It understates the importance of proÂ
tecting the political integrity of our governmental insti-
tutions. It creates a loophole that will allow a single
individual to contribute millions of dollars to a political party
or to a candidateâs campaign. Taken together with Citi-
zens United v. Federal Election Commân, 558 U. S. 310
(2010), todayâs decision eviscerates our Nationâs campaign
finance laws, leaving a remnant incapable of dealing with
the grave problems of democratic legitimacy that those
laws were intended to resolve.
I
The plurality concludes that the aggregate contribution
limits â âunnecessar[ily] abridg[e]â â First Amendment
rights. Ante, at 8, 30 (quoting Buckley, supra, at 25). It
notes that some individuals will wish to âspen[d] âsubstanÂ
tial amounts of money in order to communicate [their]
political ideas through sophisticatedâ means.â Ante, at 14â
15 (quoting Federal Election Commân v. National Con-
servative Political Action Comm., 470 U. S. 480, 493 (1985)
(NCPAC)). Aggregate contribution ceilings limit an indiÂ
vidualâs ability to engage in such âbroader participation in
the democratic process,â while insufficiently advancing
any legitimate governmental objective. Ante, at 16, 21â29.
Hence, the plurality finds, they violate the Constitution.
The pluralityâs conclusion rests upon three separate but
related claims. Each is fatally flawed. First, the plurality
says that given the base limits on contributions to candiÂ
Cite as: 572 U. S. ____ (2014) 3
BREYER, J., dissenting
dates and political committees, aggregate limits do not
further any independent governmental objective worthy of
protection. And that is because, given the base limits,
â[s]pending large sums of money in connection with elecÂ
tionsâ does not âgive rise to . . . corruption.â Ante, at 19.
In making this argument, the plurality relies heavily upon
a narrow definition of âcorruptionâ that excludes efforts
to obtain â âinfluence over or access toâ elected officials or
political parties. â Ibid. (quoting Citizens United, supra, at
359); accord, ante, at 18â20, 22â29.
Second, the plurality assesses the instrumental objecÂ
tive of the aggregate limits, namely, safeguarding the base
limits. It finds that they âdo not serve that function in any
meaningful way.â Ante, at 22. That is because, even
without the aggregate limits, the possibilities for circumÂ
venting the base limits are âimplausibleâ and âdivorced
from reality.â Ante, at 23, 24, 28.
Third, the plurality says the aggregate limits are not a
â âreasonableâ â policy tool. Rather, they are âpoorly tailored
to the Governmentâs interest in preventing circumvention
of the base limits.â Ante, at 30 (quoting Board of Trustees
of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989)).
The plurality imagines several alternative regulations
that it says might just as effectively thwart circumvention.
Accordingly, it finds, the aggregate caps are out of â âproÂ
portion to the [anticorruption] interest served.â â Ante, at
30 (quoting Fox, supra, at 480).
II
The pluralityâs first claimâthat large aggregate contriÂ
butions do not âgive riseâ to âcorruptionââis plausible only
because the plurality defines âcorruptionâ too narrowly.
The plurality describes the constitutionally permissible
objective of campaign finance regulation as follows: âConÂ
gress may target only a specific type of corruptionââquid
pro quoâ corruption.â Ante, at 19. It then defines quid pro
4 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
quo corruption to mean no more than âa direct exchange of
an official act for moneyââan act akin to bribery. Ante, at
2â3. It adds specifically that corruption does not include
efforts to âgarner âinfluence over or access toâ elected offiÂ
cials or political parties.â Ante, at 19 (quoting Citizens
United, supra, at 359). Moreover, the Governmentâs efÂ
forts to prevent the âappearance of corruptionâ are âequally
confined to the appearance of quid pro quo corruption,â
as narrowly defined. Ante, at 19. In the pluralityâs view, a
federal statute could not prevent an individual from writÂ
ing a million dollar check to a political party (by donating
to its various committees), because the rationale for any
limit would âdangerously broade[n] the circumscribed
definition of quid pro quo corruption articulated in our
prior cases.â Ante, at 37.
This critically important definition of âcorruptionâ is
inconsistent with the Courtâs prior case law (with the
possible exception of Citizens United, as I will explain
below). It is virtually impossible to reconcile with this
Courtâs decision in McConnell, upholding the Bipartisan
Campaign Reform Act of 2002 (BCRA). And it misun-
derstands the constitutional importance of the interests
at stake. In fact, constitutional interestsâindeed,
First Amendment interestsâlie on both sides of the legal
equation.
A
In reality, as the history of campaign finance reform
shows and as our earlier cases on the subject have recogÂ
nized, the anticorruption interest that drives Congress to
regulate campaign contributions is a far broader, more
important interest than the plurality acknowledges. It is
an interest in maintaining the integrity of our public
governmental institutions. And it is an interest rooted in
the Constitution and in the First Amendment itself.
Consider at least one reason why the First Amendment
Cite as: 572 U. S. ____ (2014) 5
BREYER, J., dissenting
protects political speech. Speech does not exist in a vac-
uum. Rather, political communication seeks to secure
government action. A politically oriented âmarketplace of
ideasâ seeks to form a public opinion that can and will
influence elected representatives.
This is not a new idea. Eighty-seven years ago, Justice
Brandeis wrote that the First Amendmentâs protection of
speech was âessential to effective democracy.â Whitney v.
California, 274 U. S. 357, 377 (1927) (concurring opinion).
Chief Justice Hughes reiterated the same idea shortly
thereafter: âA fundamental principle of our constitutional
systemâ is the âmaintenance of the opportunity for free
political discussion to the end that government may be
responsive to the will of the people.â Stromberg v. Cali-
fornia, 283 U. S. 359, 369 (1931) (emphasis added). In
Citizens United, the Court stated that â[s]peech is an
essential mechanism of democracy, for it is the means to
hold officials accountable to the people.â 558 U. S., at 339
(emphasis added).
The Framers had good reason to emphasize this same
connection between political speech and governmental
action. An influential 18th-century continental philosoÂ
pher had argued that in a representative democracy, the
people lose control of their representatives between elecÂ
tions, during which interim periods they were âin chains.â
J. Rousseau, An Inquiry Into the Nature of the Social
Contract 265â266 (transl. 1791).
The Framers responded to this criticism both by requirÂ
ing frequent elections to federal office, and by enacting a
First Amendment that would facilitate a âchain of comÂ
munication between the people, and those, to whom they
have committed the exercise of the powers of government.â
J. Wilson, Commentaries on the Constitution of the United
States of America 30â31 (1792). This âchainâ would
establish the necessary âcommunion of interests and
sympathy of sentimentsâ between the people and their
6 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
representatives, so that public opinion could be channeled
into effective governmental action. The Federalist No. 57,
p. 386 (J. Cooke ed. 1961) (J. Madison); accord, T. Benton,
1 Abridgement of the Debates of Congress, from 1789 to
1856, p. 141 (1857) (explaining that the First Amendment
will strengthen American democracy by giving â âthe peoÂ
pleâ â a right to â âpublicly address their representatives,â â
â âprivately advise them,â â or â âdeclare their sentiments by
petition to the whole bodyâ â (quoting James Madison)).
Accordingly, the First Amendment advances not only the
individualâs right to engage in political speech, but also the
publicâs interest in preserving a democratic order in which
collective speech matters.
What has this to do with corruption? It has everything
to do with corruption. Corruption breaks the constitutionÂ
ally necessary âchain of communicationâ between the
people and their representatives. It derails the essential
speech-to-government-action tie. Where enough money
calls the tune, the general public will not be heard. InsoÂ
far as corruption cuts the link between political thought
and political action, a free marketplace of political ideas
loses its point. That is one reason why the Court has
stressed the constitutional importance of Congressâ conÂ
cern that a few large donations not drown out the voices of
the many. See, e.g., Buckley, 424 U. S., at 26â27.
That is also why the Court has used the phrase âsubverÂ
sion of the political processâ to describe circumstances in
which â[e]lected officials are influenced to act contrary to
their obligations of office by the prospect of financial gain
to themselves or infusions of money into their campaigns.â
NCPAC, 470 U. S., at 497. See also Federal Election
Commân v. National Right to Work Comm., 459 U. S. 197,
208 (1982) (the Governmentâs interests in preventing
corruption âdirectly implicate the integrity of our electoral
processâ (internal quotation marks and citation omitted)).
See generally R. Post, Citizens Divided: Campaign FiÂ
Cite as: 572 U. S. ____ (2014) 7
BREYER, J., dissenting
nance Reform and the Constitution 7â16, 80â94 (forthcomÂ
ing 2014) (arguing that the efficacy of American democ-
racy depends on âelectoral integrityâ and the responsiveness
of public officials to public opinion).
The âappearance of corruptionâ can make matters worse.
It can lead the public to believe that its efforts to comÂ
municate with its representatives or to help sway public
opinion have little purpose. And a cynical public can lose
interest in political participation altogether. See Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 390
(2000) (â[T]he cynical assumption that large donors call
the tune could jeopardize the willingness of voters to take
part in democratic governanceâ). Democracy, the Court
has often said, cannot work unless âthe people have faith
in those who govern.â United States v. Mississippi Valley
Generating Co., 364 U. S. 520, 562 (1961).
The upshot is that the interests the Court has long
described as preventing âcorruptionâ or the âappearance of
corruptionâ are more than ordinary factors to be weighed
against the constitutional right to political speech. Rather,
they are interests rooted in the First Amendment it-
self. They are rooted in the constitutional effort to create
a democracy responsive to the peopleâa government
where laws reflect the very thoughts, views, ideas, and
sentiments, the expression of which the First Amendment
protects. Given that end, we can and should understand
campaign finance laws as resting upon a broader and
more significant constitutional rationale than the plural-
ityâs limited definition of âcorruptionâ suggests. We should
see these laws as seeking in significant part to strengthen,
rather than weaken, the First Amendment. To say this is
not to deny the potential for conflict between (1) the need
to permit contributions that pay for the diffusion of ideas,
and (2) the need to limit payments in order to help mainÂ
tain the integrity of the electoral process. But that conflict
takes place within, not outside, the First Amendmentâs
8 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
boundaries.
B
Since the kinds of corruption that can destroy the link
between public opinion and governmental action extend
well beyond those the plurality describes, the pluralityâs
notion of corruption is flatly inconsistent with the basic
constitutional rationale I have just described. Thus, it
should surprise no one that this Courtâs case law (Citizens
United excepted) insists upon a considerably broader
definition.
In Buckley, for instance, the Court said explicitly that
aggregate limits were constitutional because they helped
âprevent evasion . . . [through] huge contributions to the
candidateâs political party,â 424 U. S., at 26 (the contrary
to what the plurality today seems to believe, see ante, at
36â39). Moreover, Buckley upheld the base limits in
significant part because they helped thwart âthe appearÂ
ance of corruption stemming from public awareness of the
opportunities for abuse inherent in a regime of large indi-
vidual financial contributions.â 424 U. S., at 27 (emphasis
added). And it said that Congress could reasonably conÂ
clude that criminal laws forbidding âthe giving and taking
of bribesâ did not adequately âdeal with the reality or
appearance of corruption.â Id., at 28. Bribery laws, the
Court recognized, address âonly the most blatant and
specific attempts of those with money to influence govÂ
ernmental action.â Ibid. The concern with corruption
extends further.
Other cases put the matter yet more strongly. In
Beaumont, for example, the Court found constitutional a
ban on direct contributions by corporations because of the
need to prevent corruption, properly âunderstood not only
as quid pro quo agreements, but also as undue influence
on an officeholderâs judgment.â Federal Election Commân
v. Beaumont, 539 U. S. 146, 155â156 (2003). In Federal
Cite as: 572 U. S. ____ (2014) 9
BREYER, J., dissenting
Election Commân v. Colorado Republican Federal Cam-
paign Comm., 533 U. S. 431, 441, 457â460 (2001) (Colo-
rado II ), the Court upheld limits imposed upon coordinated
expenditures among parties and candidates because it
found they thwarted corruption and its appearance, again
understood as including âundue influenceâ by wealthy
donors. In Shrink Missouri, the Court upheld limitations
imposed by the Missouri Legislature upon contributions to
state political candidates, not only because of the need to
prevent bribery, but also because of âthe broader threat
from politicians too compliant with the wishes of large
contributors.â 528 U. S., at 389.
C
Most important, in McConnell, this Court considered the
constitutionality of the Bipartisan Campaign Reform Act
of 2002, an Act that set new limits on âsoft moneyâ contriÂ
butions to political parties. âSoft moneyâ referred to funds
that, prior to BCRA, were freely donated to parties for
activities other than directly helping elect a federal candiÂ
dateâactivities such as voter registration, âget out the
voteâ drives, and advertising that did not expressly advoÂ
cate a federal candidateâs election or defeat. 540 U. S., at
122â124. BCRA imposed a new ban on soft money contriÂ
butions to national party committees, and greatly curÂ
tailed them in respect to state and local parties. Id., at
133â134, 161â164.
The Court in McConnell upheld these new contribution
restrictions under the First Amendment for the very reaÂ
son the plurality today discounts or ignores. Namely,
the Court found they thwarted a significant risk of corÂ
ruptionâunderstood not as quid pro quo bribery, but as
privileged access to and pernicious influence upon elected
representatives.
In reaching its conclusion in McConnell, the Court relied
upon a vast record compiled in the District Court. That
10 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
record consisted of over 100,000 pages of material and
included testimony from more than 200 witnesses. See
251 F. Supp. 2d 176
, 209 (DC 2003) (per curiam). What it
showed, in detail, was the web of relationships and un-
derstandings among parties, candidates, and large donors
that underlies privileged access and influence. See
McConnell, 540 U. S., at 146â152, 154â157, 167â171, 182â
184. The District Judges in McConnell made clear that
the record did ânot contain any evidence of bribery or vote
buying in exchange for donations of nonfederal money.â
251 F. Supp. 2d, at 481 (opinion of Kollar-Kotelly, J.)
(emphasis added). Indeed, no one had identified a âsingle
discrete instance of quid pro quo corruptionâ due to soft
money. Id., at 395 (opinion of Henderson, J.). But what
the record did demonstrate was that enormous soft money
contributions, ranging between $1 million and $5 million
among the largest donors, enabled wealthy contributors to
gain disproportionate âaccess to federal lawmakersâ and
the ability to âinfluenc[e] legislation.â Id., at 481 (opinion
of Kollar-Kotelly, J.). There was an indisputable link
between generous political donations and opportunity
after opportunity to make oneâs case directly to a Member
of Congress.
Testimony by elected officials supported this conclusion.
See, e.g., ibid. (â âLarge donors of both hard and soft money
receive special treatmentâ â (Sen. Simpson)); id., at 482
(â âDonations, including soft money donations to political
parties, do affect how Congress operates. Itâs only natural,
and happens all too often, that a busy Senator with 10
minutes to spare will spend those minutes returning the
call of a large soft money donorâ â (Sen. Boren)); id., at 496
(â âAt a minimum, large soft money donations purchase an
opportunity for the donors to make their case to elected
officials . . .â â (Sen. McCain)). Furthermore, testimony
from party operatives showed that national political parÂ
ties had created âmajor donor programs,â through which
Cite as: 572 U. S. ____ (2014) 11
BREYER, J., dissenting
they openly âoffer[ed] greater access to federal office holdÂ
ers as the donations gr[e]w larger.â Id., at 502. I have
placed in Appendix A more examples of the kind of eviÂ
dence that filled the District Court record in McConnell.
This Court upheld BCRAâs limitations on soft money
contributions by relying on just the kind of evidence I have
described. We wrote:
âThe evidence in the record shows that candidates and
donors alike have in fact exploited the soft-money
loophole, the former to increase their prospects of
election and the latter to create debt on the part of ofÂ
ficeholders . . . . Plaintiffs argue that without concrete
evidence of an instance in which a federal officeholder
has actually switched a vote [in exchange for soft
money] . . . , Congress has not shown that there exists
real or apparent corruption. . . . [P]laintiffs conceive of
corruption too narrowly. Our cases have firmly estabÂ
lished that Congressâ legitimate interest extends beÂ
yond preventing simple cash-for-votes corruption to
curbing âundue influence on an officeholderâs judgÂ
ment, and the appearance of such influence.â â 540
U. S., at 146, 149â150 (quoting Colorado II, 533 U. S.,
at 441; emphasis added; paragraphs and paragraph
breaks omitted).
We specifically rejected efforts to define âcorruptionâ in
ways similar to those the plurality today accepts. We
added:
âJust as troubling to a functioning democracy as clasÂ
sic quid pro quo corruption is the danger that officeÂ
holders will decide issues not on the merits or the
desires of their constituencies, but according to the
wishes of those who have made large financial contriÂ
butions valued by the officeholder.â 540 U. S., at 153.
Insofar as todayâs decision sets forth a significantly narÂ
12 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
rower definition of âcorruption,â and hence of the publicâs
interest in political integrity, it is flatly inconsistent with
McConnell.
D
One case, however, contains language that offers the
plurality support. That case is Citizens United. There, as
the plurality points out, ante, at 19, the Court said that
â[w]hen Buckley identified a sufficiently important govÂ
ernmental interest in preventing corruption or the apÂ
pearance of corruption, that interest was limited to quid
pro quo corruption.â 558 U. S., at 359. Further, the Court
said that quid pro quo corruption does not include âinfluÂ
ence over or access to elected officials,â because â âgeneric
favoritism or influence theory . . . is at odds with standard
First Amendment analyses.â â Ibid. (quoting McConnell,
supra, at 296 (KENNEDY, J., concurring in judgment in
part and dissenting in part)).
How should we treat these statements from Citizens
United now? They are not essential to the Courtâs holding
in the caseâat least insofar as it can be read to require
federal law to treat corporations and trade unions like
individuals when they independently pay for, e.g., televiÂ
sion advertising during the last 60 days of a federal elecÂ
tion. Citizens United, supra, at 365. Taken literally, the
statements cited simply refer to and characterize stillÂ
earlier Court cases. They do not require the more absolute
reading that the plurality here gives them.
More than that. Read as the plurality reads them toÂ
day, the statements from Citizens United about the proper
contours of the corruption rationale conflict not just with
language in the McConnell opinion, but with McConnellâs
very holding. See supra, at 9â11. Did the Court in Citi-
zens United intend to overrule McConnell? I doubt it, for
if it did, the Court or certainly the dissent would have said
something about it. The total silence of all opinions in
Cite as: 572 U. S. ____ (2014) 13
BREYER, J., dissenting
Citizens United with respect to this matter argues strongly
in favor of treating the language quoted above as dic-
tum, as an overstatement, or as limited to the context in
which it appears. Citizens United itself contains language
that supports the last mentioned reading, for it says that
â[Buckley] did not extend this rationale [about the reality
or appearance of corruption] to independent expenditures,
and the Court does not do so here.â 558 U. S., at 357
(emphasis added). And it adds that, while â[t]he BCRA
record establishes that certain donations to political parÂ
ties, called âsoft money,â were made to gain access to elected
officials,â â[t]his case, however, is about independent
expenditures, not soft money.â Id., at 360â361 (emphasis
added).
The pluralityâs use of Citizens Unitedâs narrow definition
of corruption here, however, is a different matter. That
use does not come accompanied with a limiting context
(independent expenditures by corporations and unions) or
limiting language. It applies to the whole of campaign
finance regulation. And, as I have pointed out, it is flatly
inconsistent with the broader definition of corruption upon
which McConnellâs holding depends.
So: Does the Court intend today to overrule McConnell?
Or does it intend to leave McConnell and BCRA in place?
The plurality says the latter. Ante, at 20â21, n. 6 (âOur
holding about the constitutionality of the aggregate limits
clearly does not overrule McConnellâs holding about âsoft
moneyâ â). But how does the plurality explain its rejection
of the broader definition of corruption, upon which
McConnellâs holding depends? Compare ante, at 18â21,
with McConnell, 540 U. S., at 146, 149â153.
III
The plurality invalidates the aggregate contribution
limits for a second reason. It believes they are no longer
needed to prevent contributors from circumventing federal
14 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
limits on direct contributions to individuals, political
parties, and political action committees. Ante, at 22â29.
Cf. Buckley, 424 U. S., at 38 (aggregate limits âprevent
evasionâ of base contribution limits). Other âcampaign
finance laws,â combined with âexperienceâ and âcommon
sense,â foreclose the various circumvention scenarios that
the Government hypothesizes. Ante, at 28. Accordingly,
the plurality concludes, the aggregate limits provide no
added benefit.
The plurality is wrong. Here, as in Buckley, in the
absence of limits on aggregate political contributions,
donors can and likely will find ways to channel millions of
dollars to parties and to individual candidates, producing
precisely the kind of âcorruptionâ or âappearance of corÂ
ruptionâ that previously led the Court to hold aggregate
limits constitutional. Those opportunities for circumvenÂ
tion will also produce the type of corruption that concerns
the plurality today. The methods for using todayâs opinion
to evade the lawâs individual contribution limits are comÂ
plex, but they are well known, or will become well known,
to party fundraisers. I shall describe three.
A
Example One: Gifts for the Benefit of the Party. CamÂ
paign finance law permits each individual to give $64,800
over two years to a national party committee. 2 U. S. C.
§441a(a)(1)(B); 78 Fed. Reg. 8532 (2013). The two major
political parties each have three national committees.
Ante, at 4, n. 1. Federal law also entitles an individual to
give $20,000 to a state party committee over two years.
§441a(a)(1)(D). Each major political party has 50 such
committees. Those individual limits mean that, in the
absence of any aggregate limit, an individual could legally
give to the Republican Party or to the Democratic Party
about $1.2 million over two years. See Appendix B, Table
1, infra, at 39. To make it easier for contributors to give
Cite as: 572 U. S. ____ (2014) 15
BREYER, J., dissenting
gifts of this size, each party could create a âJoint Party
Committee,â comprising all of its national and state party
committees. The titular heads could be the Speaker of the
House of Representatives and the Minority Leader of the
House. A contributor could then write a single check to
the Joint Party Committeeâand its staff would divide the
funds so that each constituent unit receives no more than
it could obtain from the contributor directly ($64,800 for a
national committee over two years, $20,000 for a state
committee over the same). Before todayâs decision, the
total size of Rich Donorâs check to the Joint Party CommitÂ
tee was capped at $74,600âthe aggregate limit for donaÂ
tions to political parties over a 2-year election cycle. See
§441a(a)(3)(B); 78 Fed. Reg. 8532. After todayâs decision,
Rich Donor can write a single check to the Joint Party
Committee in an amount of about $1.2 million.
Will political parties seek these large checks? Why not?
The recipient national and state committees can spend the
money to buy generic party advertisements, say television
commercials or bumper stickers saying âSupport RepubliÂ
cans,â âSupport Democrats,â or the like. They also can
transfer the money to party committees in battleground
States to increase the chances of winning hotly contested
seats. See §441a(a)(4) (permitting national or state po-
litical committees to make unlimited âtransfersâ to other
committees âof the same political partyâ).
Will party officials and candidates solicit these large
contributions from wealthy donors? Absolutely. Such con-
tributions will help increase the partyâs power, as well
as the candidateâs standing among his colleagues.
Will elected officials be particularly grateful to the large
donor, feeling obliged to provide him special access and
influence, and perhaps even a quid pro quo legislative
favor? That is what we have previously believed. See
McConnell, 540 U. S., at 182 (âLarge soft-money donations
at a candidateâs or officeholderâs behest give rise to all of
16 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
the same corruption concerns posed by contributions made
directly to the candidate or officeholderâ); id., at 308 (opinÂ
ion of KENNEDY, J.) (âThe making of a solicited gift is a
quid both to the recipient of the money and to the one who
solicits the paymentâ); Colorado II, 533 U. S., at 460, n. 23
(explaining how a candidate can âbecome a player [in his
party] beyond his own raceâ by âdirecting donations to the
party and making sure that the party knows who raised
the money,â and that âthe donorâs influence is multipliedâ
in such instances). And, as the statements collected in
Appendix A, infra, make clear, we have believed this with
good reason.
Example Two: Donations to Individual Candidates (The
$3.6 Million Check). The first example significantly un-
derstates the problem. That is because federal election
law also allows a single contributor to give $5,200 to each
party candidate over a 2-year election cycle (assuming the
candidate is running in both a primary and a general
election). §441a(a)(1)(A); 78 Fed. Reg. 8532. There are
435 party candidates for House seats and 33 party candiÂ
dates for Senate seats in any given election year. That
makes an additional $2.4 million in allowable contribuÂ
tions. Thus, without an aggregate limit, the law will
permit a wealthy individual to write a check, over a 2-year
election cycle, for $3.6 millionâall to benefit his political
party and its candidates. See Appendix B, Table 2(a),
infra, at 39.
To make it easier for a wealthy donor to make a contriÂ
bution of this size, the parties can simply enlarge the
composition of the Joint Party Committee described in
Example One, so that it now includes party candidates.
And a party can proliferate such joint entities, perhaps
calling the first the âSmith Victory Committee,â the second
the âJones Victory Committee,â and the like. See 11 CFR
§102.17(c)(5) (2012). (I say âperhapsâ because too transÂ
parent a name might call into play certain earmarking
Cite as: 572 U. S. ____ (2014) 17
BREYER, J., dissenting
rules. But the Federal Election Commissionâs (FEC)
database of joint fundraising committees in 2012 shows
similarly named entities, e.g., âLandrieu Wyden Victory
Fund,â etc.).
As I have just said, without any aggregate limit, the law
will allow Rich Donor to write a single check to, say, the
Smith Victory Committee, for up to $3.6 million. This
check represents âthe total amount that the contributor
could contribute to all of the participantsâ in the CommitÂ
tee over a 2-year cycle. §102.17(c)(5). The Committee
would operate under an agreement that provides a âfor-
mula for the allocation of fundraising proceedsâ among its
constituent units. §102.17(c)(1). And that âformulaâ
would divide the proceeds so that no committee or can-
didate receives more than it could have received from
Rich Donor directlyâ$64,800, $20,000, or $5,200. See
§102.17(c)(6).
So what is wrong with that? The check is considerably
larger than Example Oneâs check. But is there anything
else wrong? The answer is yes, absolutely. The law will
also permit a party and its candidates to shift most of Rich
Donorâs contributions to a single candidate, say Smith.
Here is how:
The law permits each candidate and each party commitÂ
tee in the Smith Victory Committee to write Candidate
Smith a check directly. For his primary and general
elections combined, they can write checks of up to $4,000
(from each candidateâs authorized campaign committee)
and $10,000 (from each state and national committee). 2
U. S. C. §§432(e)(3)(B), 441a(a)(2)(A); 11 CFR §110.3(b).
This yields a potential $1,872,000 (from candidates) plus
$530,000 (from party committees). Thus, the law permits
the candidates and party entities to redirect $2.37 million
of Rich Donorâs $3.6 million check to Candidate Smith. It
also permits state and national committees to contribute
to Smithâs general election campaign through making
18 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
coordinated expendituresâin amounts that range from
$46,600 to $2.68 million for a general election (depending
upon the size of Smithâs State and whether he is running
for a House or Senate seat). 78 Fed. Reg. 8530â8532. See
Appendix B, Table 2(b), infra, at 40.
The upshot is that Candidate Smith can receive at least
$2.37 million and possibly the full $3.6 million contributed
by Rich Donor to the Smith Victory Committee, even
though the funds must first be divided up among the
constituent units before they can be rerouted to Smith.
Nothing requires the Smith Victory Committee to explain
in advance to Rich Donor all of the various transfers that
will take place, and nothing prevents the entities in the
Committee from informing the donor and the receiving
candidate after the fact what has transpired. Accordingly,
the money can be donated and rerouted to Candidate
Smith without the donor having violated the base limits
or any other FEC regulation. And the evidence in the
McConnell record reprinted in Appendix A, infraâwith
respect to soft money contributionsâmakes clear that
Candidate Smith will almost certainly come to learn from
whom he has received this money.
The parties can apply the same procedure to other large
donations, channeling money from Rich Donor Two to
Candidate Jones. If 10 or 20 candidates face particularly
tight races, party committees and party candidates may
work together to channel Rich Donor Oneâs multimillion
dollar contribution to the Most Embattled Candidate (e.g.,
Candidate Smith), Rich Donor Twoâs multimillion dollar
contribution to the Second Most Embattled Candidate
(e.g., Candidate Jones), and so on down the line. If this
does not count as evasion of the base limits, what does?
Present aggregate limits confine the size of any individual
gift to $123,200. Todayâs opinion creates a loophole measÂ
ured in the millions.
Example Three: Proliferating Political Action Commit-
Cite as: 572 U. S. ____ (2014) 19
BREYER, J., dissenting
tees (PACs). Campaign finance law prohibits an individual
from contributing (1) more than $5,200 to any candidate in
a federal election cycle, and (2) more than $5,000 to a PAC
in a calendar year. 2 U. S. C. §§441a(a)(1)(A), (C); 78 Fed.
Reg. 8532. It also prohibits (3) any PAC from contributing
more than $10,000 to any candidate in an election cycle.
§441(a)(2)(A). But the law does not prohibit an individual
from contributing (within the current $123,200 biannual
aggregate limit) $5,000 to each of an unlimited total numÂ
ber of PACs. And there, so to speak, lies the rub.
Here is how, without any aggregate limits, a party will
be able to channel $2 million from each of ten Rich Do-
nors to each of ten Embattled Candidates. Groups of party
supportersâindividuals, corporations, or trade unionsâ
create 200 PACs. Each PAC claims it will use the funds it
raises to support several candidates from the party,
though it will favor those who are most endangered.
(Each PAC qualifies for âmulticandidateâ status because it
has received contributions from more than 50 persons and
has made contributions to five federal candidates at some
point previously. §441a(a)(4); 11 CFR §100.5(e)(3)). Over
a 2-year election cycle, Rich Donor One gives $10,000 to
each PAC ($5,000 per year)âyielding $2 million total.
Rich Donor 2 does the same. So, too, do the other eight
Rich Donors. This brings their total donations to $20
million, disbursed among the 200 PACs. Each PAC will
have collected $100,000, and each can use its money to
write ten checks of $10,000âto each of the ten most EmÂ
battled Candidates in the party (over two years). See
Appendix B, Table 3, infra, at 41. Every Embattled CanÂ
didate, receiving a $10,000 check from 200 PACs, will
have collected $2 million.
The upshot is that ten Rich Donors will have contrib-
uted $2 million each, and ten Embattled Candidates will
have collected $2 million each. In this example, unlike
Example Two, the recipient candidates may not know
20 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
which of the ten Rich Donors is personally responsible for
the $2 million he or she receives. But the recipient candiÂ
date is highly likely to know who the ten Rich Donors are,
and to feel appropriately grateful. Moreover, the ability of
a small group of donors to contribute this kind of money to
threatened candidates is not insignificant. In the example
aboveâwith ten Rich Donors giving $2 million each, and
ten Embattled Candidates receiving $2 million eachâthe
contributions would have been enough to finance a considÂ
erable portion of, and perhaps all of, the candidatesâ races
in the 2012 elections. See Appendix C, Table 1, infra, at
42 (showing that in 2012, the average winning House
candidate spent $1.6 million and the average winning
Senate candidate spent $11.5 million).
B
The plurality believes that the three scenarios I have
just depicted either pose no threat, or cannot or will not
take place. It does not believe the scenario depicted in
Example One is any cause for concern, because it involves
only âgeneral, broad-based support of a political party.â
Ante, at 37. Not so. A candidate who solicits a multimilÂ
lion dollar check for his party will be deeply grateful to the
checkwriter, and surely could reward him with a quid pro
quo favor. The plurality discounts the scenarios depicted
in Example Two and Example Three because it finds such
circumvention tactics âillegal under current campaign
finance laws,â âimplausible,â or âdivorced from reality.â
Ante, at 23, 24, 28. But they are not.
The pluralityâs view depends in large part upon its claim
that since this Court decided Buckley in 1976, changes in
either statutory law or in applicable regulations have
come to make it difficult, if not impossible, for these cirÂ
cumvention scenarios to arise. Hence, it concludes, there
is no longer a need for aggregate contribution limits. See
ante, at 11â13, 22â29. But a closer examination of the five
Cite as: 572 U. S. ____ (2014) 21
BREYER, J., dissenting
legal changes to which the plurality points makes clear
that those changes cannot effectively stop the abuses that
I have depicted.
First, the plurality points out that in 1976 (a few
months after this Court decided Buckley) Congress âadded
limits on contributions to political committees,â i.e., to
PACs. Ante, at 11; accord, 90 Stat. 487 (codified at 2
U. S. C. §441a(a)(1)(C)). But Example Three, the hereÂ
relevant example, takes account of those limits, namely,
$5,000 to a PAC in any given year. And it shows that the
per-PAC limit does not matter much when it comes to the
potential for circumvention, as long as party supporters
can create dozens or hundreds of PACs. Federal law
places no upper limit on the number of PACs supporting a
party or a group of party candidates that can be estabÂ
lished. And creating a PAC is primarily a matter of paÂ
perwork, a knowledgeable staff person, and a little time.
Second, the plurality points out that in 1976, Congress
âalso added an antiproliferation rule prohibiting donors
from creating or controlling multiple affiliated political
committees.â Ante, at 12. The rule provides that âall
contributions made by political committees established or
financed or maintained or controlledâ by the same corporaÂ
tion, labor organization, person, or group of persons, âshall
be considered to have been made by a single political
committee.â §441a(a)(5). But different supporters can
create different PACs. Indeed, there were roughly 2,700
ânonconnectedâ PACs (i.e., PACs not connected to a spe-
cific corporation or labor union) operating during the 2012
elections. Ante, at 24. In a future without aggregate
contribution limits, far more nonconnected PACs will
likely appear. The plurality also notes that the FEC can
examine certain â âcircumstantial factors,â â such as â âcomÂ
mon or overlapping membershipâ â or â âsimilar patterns of
contributions,â â to determine whether a group of PACs are
affiliated. Ante, at 25 (quoting 11 CFR §100.5(g)(4)(ii)).
22 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
But the ultimate question in the affiliation inquiry is
whether âone committee or organization [has] been estabÂ
lished, financed, maintain or controlled by another comÂ
mittee or sponsoring organization.â Ibid. Just because a
group of multicandidate PACs all support the same party
and all decide to donate funds to a group of endangered
candidates in that party does not mean they will qualify
as âaffiliatedâ under the relevant definition. This rule
appears inadequate to stop the sort of circumvention
depicted in Example Three.
Third, the plurality says that a post-Buckley regulation
has strengthened the statuteâs earmarking provision.
Ante, at 12. Namely, the plurality points to a rule pro-
mulgated by the FEC in 1976, specifying that earmarking
includes any âdesignation âwhether direct or indirect,
express or implied, oral or written.â â Ibid. (quoting 11
CFR §110.6(b)); accord, 41 Fed. Reg. 35950 (1976). This
means that if Rich Donor were to give $5,000 to a PAC
while âdesignat[ing]â (in any way) that the money go to
Candidate Smith, those funds must count towards Rich
Donorâs total allowable contributions to Smithâ$5,200 per
election cycle. But the virtually identical earmarking
provision in effect when this Court decided Buckley would
have required the same thing. That provision also counted,
when applying the base contribution limits, âall contri-
butions made by a person, either directly or indirectly, on
behalf of a particular candidate, including contributions
which are in any way earmarked or otherwise directed
through an intermediary or conduit to a candidate.â 88
Stat. 1264; accord, 2 U. S. C. §441a(a)(8) (same). What is
the difference?
Fourth, the plurality points out that the FECâs regulaÂ
tions âspecify that an individual who has contributed to a
particular candidate committee may not also contribute to
a single-candidate committee for that candidate.â Ante, at
12â13 (citing 11 CFR §110.1(h)(1); emphasis added). The
Cite as: 572 U. S. ____ (2014) 23
BREYER, J., dissenting
regulations, however, do not prevent a person who has
contributed to a candidate from also contributing to multi-
candidate committees that support the candidate. Indeed,
the rules specifically authorize such contributions. See
§110.1(h) (âA person may contribute to a candidate . . . and
also contribute to a political committee which has sup-
ported, or anticipates supporting, the same candidate in
the same election,â as long as the political committee is ânot
the candidateâs principal campaign committeeâ or a âsingle
candidate committeeâ (emphasis added)). Example Three
illustrates the latter kind of contribution. And briefs
before us make clear that the possibility for circumventing
the base limits through making such contributions is a
realistic, not an illusory, one. See Brief for Appellee 36
(demonstrating that many PACs today explain in their
public materials just what fairly small group of candidates
they intend to support); Brief for Americans for Campaign
Reform as Amicus Curiae 14â15 (similar).
Fifth, the plurality points to another FEC regulation
(also added in 1976), which says that âan individual who
has contributed to a candidateâ may not âalso contribute to
a political committee that has supported or anticipates
supporting the same candidate if the individual knows
that âa substantial portion [of his contribution] will be
contributed to, or expended on behalf of,â that candidate.â
Ante, at 13 (quoting 11 CFR §110.1(h)(2); brackets in
original); accord, 41 Fed. Reg. 35948. This regulation is
important, for in principle, the FEC might use it to preÂ
vent the circumstances that Examples Two and Three set
forth from arising. And it is not surprising that the pluÂ
rality relies upon the existence of this rule when it deÂ
scribes those circumstances as âimplausible,â âillegal,â or
âdivorced from reality.â Ante, at 23, 24, 28.
In fact, however, this regulation is not the strong antiÂ
circumvention weapon that the plurality imagines. DeÂ
spite the pluralityâs assurances, it does not âdisarmâ the
24 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
possibilities for circumvention. Ante, at 23. That is beÂ
cause the regulation requires a showing that donors have
âknowledge that a substantial portionâ of their contribuÂ
tions will be used by a PAC to support a candidate to
whom they have already contributed. §110.1(h)(2) (emÂ
phasis added). And âknowledgeâ is hard to prove.
I have found nine FEC cases decided since the year 2000
that refer to this regulation. In all but one, the FEC failed
to find the requisite âknowledgeââdespite the presence of
Example Two or Example Three circumstances. See FacÂ
tual and Legal Analysis, In re: Transfund PAC, Matter
Under Review (MUR) 6221, p. 11 (FEC, June 7, 2010)
(although the donor âmight reasonably infer that some
portion of his contributionâ to a candidateâs Leadership
PAC would be used to support the candidate, âsuch an
inference alone does not suggest that [he] had âactual
knowledgeâ â of such); Factual and Legal Analysis, In re:
John Shadeggâs Friends, MUR 5968, pp. 3, 6â7 (FEC, Nov.
10, 2008) (â[T]here is no basis on which to conclude that
[the donors] knew that the funds they contributed to
LEAD PAC would be used to support the Shadegg ComÂ
mitteeâ even though Congressman Shadegg solicited the
donations and LEAD PAC was Congressman Shadeggâs
Leadership PAC); Factual and Legal Analysis, In re: Wal-
berg for Congress, MUR 5881, pp. 6, 9â11 (FEC, Aug. 15,
2007) (finding seven contributors, who gave to a candidate
and to a PAC that provided 86% of the candidateâs financÂ
ing, had not shown âknowledgeâ); Factual and Legal AnalÂ
ysis, In re: Matt Brown for Senate, MUR 5732, p. 11 (FEC,
Apr. 4, 2007) (âThough it may be reasonable to infer that
the individual donors solicited by Brown gave to the State
Parties under the assumption that some portion of their
contribution might then be donated to the Brown CommitÂ
tee, such an inference alone is insufficient to find reason to
believe 11 CFR §110.1(h) has been violatedâ); First GenÂ
eral Counselâs Report, In re: Liffrig for Senate, MUR 5678,
Cite as: 572 U. S. ____ (2014) 25
BREYER, J., dissenting
pp. 8â9 (FEC, Nov. 27, 2006) (similar); First General
Counselâs Report, In re: Nesbitt, MUR 5445, pp. 11â12
(FEC, Feb. 2, 2005) (similar); First General Counselâs
Report, In re: Keystone Corp., MUR 5019, pp. 23â29 (FEC,
Feb. 5, 2001) (similar); General Counselâs Report #2, In re:
Boston Capital Corp., MUR 4538, pp. 17â18 (FEC, Mar.
10, 2000) (recommending the FEC take no action with
respect to the §110.1(h) issue). Given this record of FEC
(in)activity, my reaction to the pluralityâs reliance upon
agency enforcement of this rule (as an adequate substitute
for Congressâ aggregate limits) is like Oscar Wildeâs after
reading Dickensâ account of the death of Little Nell: âOne
must have a heart of stone,â said Wilde, âto read [it] withÂ
out laughing.â Oxford Dictionary of Humorous Quotations
86 (N. Sherrin 2d ed. 2001).
I have found one contrary exampleâthe single example
to which the plurality refers. Ante, at 25 (citing ConciliaÂ
tion Agreement, In re Riley, MURs 4568, 4633, 4634, 4736
(FEC, Dec. 19, 2001)). In that case, the FEC found probÂ
able cause to believe that three individual contributors to
several PACs had the requisite âknowledgeâ that the PACs
would use a âsubstantial portionâ of their contributions to
support a candidate to whom they had already contributedâ
Sam Brownback, a candidate for the Senate (for two of
the contributors), and Robert Riley, a candidate for the
House (for the third). The individuals had made donations
to several PACs operating as a network, under the direcÂ
tion of a single political consulting firm. The two contribuÂ
tors to Sam Brownback were his parents-in-law, and the
FEC believed they might be using the PAC network to
channel extra support to him. The contributor to Robert
Riley was his son, and the FEC believed he might be doing
the same. The facts in this case are unusual, for individ-
ual contributors are not typically relatives of the candidates
they are seeking to support, and ordinary PACs do not
tend to work in coordination under the direction of a conÂ
26 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
sulting firm. In any event, this single swallow cannot
make the pluralityâs summer.
Thus, it is not surprising that throughout the many
years this FEC regulation has been in effect, political
parties and candidates have established ever more joint
fundraising committees (numbering over 500 in the last
federal elections); candidates have established ever more
âLeadership PACsâ (numbering over 450 in the last elecÂ
tions); and party supporters have established ever more
multicandidate PACs (numbering over 3,000 in the last
elections). See Appendix C, Tables 2â3, infra, at 42â43;
FEC, 2014 Committee Summary (reporting the number of
âqualifiedâ (or multicandidate) PACs in 2012), online at
http://www.fec.gov/data/CommitteeSummary.do (all InterÂ
net materials as visited Mar. 28, 2014, and available in
Clerk of Courtâs case file).
Using these entities, candidates, parties, and party
supporters can transfer and, we are told, have transferred
large sums of money to specific candidates, thereby avoidÂ
ing the base contribution limits in ways that Examples
Two and Three help demonstrate. See Brief for Appellee
38â39, 53â54; Brief for Campaign Legal Center, et al. as
Amici Curiae 12â15; Brief of Democratic Members of the
United States House of Representatives as Amici Curiae
28â29. They have done so without drawing FEC prosecuÂ
tionâat least not according to my (and apparently the
pluralityâs) search of publicly available records. That is
likely because in the real world, the methods of achieving
circumvention are more subtle and more complex than our
stylized Examples Two and Three depict. And persons
have used these entities to channel money to candidates
without any individual breaching the current aggregate
$123,200 limit. The plurality now removes that limit,
thereby permitting wealthy donors to make aggregate
contributions not of $123,200, but of several millions of
dollars. If the FEC regulation has failed to plug a small
Cite as: 572 U. S. ____ (2014) 27
BREYER, J., dissenting
hole, how can it possibly plug a large one?
IV
The plurality concludes that even if circumvention were
a threat, the aggregate limits are âpoorly tailoredâ to ad-
dress it. Ante, at 30. The First Amendment requires â âa
fit that is . . . reasonable,â â and there is no such âfitâ here
because there are several alternative ways Congress could
prevent evasion of the base limits. Ibid. (quoting Fox, 492
U. S., at 480). For instance, the plurality posits, Congress
(or the FEC) could âtighten . . . transfer rulesâ; it could
require âcontributions above the current aggregate limits
to be deposited into segregated, nontransferable accounts
and spent only by their recipientsâ; it could define âhow
many candidates a PAC must support in order to ensure
that âa substantial portionâ of a donorâs contribution is not
rerouted to a certain candidateâ; or it could prohibit âdoÂ
nors who have contributed the current maximum sums
from further contributing to political committees that have
indicated they will support candidates to whom the donor
has already contributed.â Ante, at 33â35 (quoting 11 CFR
§110.1(h)(2)).
The plurality, however, does not show, or try to show,
that these hypothetical alternatives could effectively
replace aggregate contribution limits. Indeed, it does not
even âopine on the validity of any particular proposal,â
ante, at 35âpresumably because these proposals themÂ
selves could be subject to constitutional challenges. For
the most part, the alternatives the plurality mentions
were similarly available at the time of Buckley. Their
hypothetical presence did not prevent the Court from
upholding aggregate limits in 1976. How can their conÂ
tinued hypothetical presence lead the plurality now to
conclude that aggregate limits are âpoorly tailored?â See
ante, at 30. How can their continued hypothetical presÂ
ence lead the Court to overrule Buckley now?
28 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
In sum, the explanation of why aggregate limits are
needed is complicated, as is the explanation of why other
methods will not work. But the conclusion is simple:
There is no âsubstantial mismatchâ between Congressâ
legitimate objective and the âmeans selected to achieve it.â
Ante, at 10. The Court, as in Buckley, should hold that
aggregate contribution limits are constitutional.
V
The District Court in this case, holding that Buckley
foreclosed McCutcheonâs constitutional challenge to the
aggregate limits, granted the Governmentâs motion to
dismiss the complaint prior to a full evidentiary hearing.
See893 F. Supp. 2d 133
, 140â141 (DC 2012). If the pluÂ
rality now believes the District Court was wrong, then
why does it not return the case for the further evidentiary
development which has not yet taken place?
In the past, when evaluating the constitutionality of
campaign finance restrictions, we have typically relied
upon an evidentiary record amassed below to determine
whether the law served a compelling governmental objecÂ
tive. And, typically, that record contained testimony from
Members of Congress (or state legislators) explaining why
Congress (or the legislature) acted as it did. See, e.g.,
McConnell, 540 U. S., at 147â154 (upholding federal reÂ
strictions on soft money by drawing on an extensive DisÂ
trict Court record that contained declarations from current
and former Members of Congress); Colorado II, 533 U. S.,
at 457â465 (upholding federal limits on coordinated exÂ
penditures between parties and candidates on the basis of
a summary judgment record that contained declarations
from party operatives, fundraisers, and Members of ConÂ
gress); Shrink Missouri, 528 U. S., at 393 (upholding
Missouriâs contribution limits on the basis of the lower
court record, which contained similar declarations). If we
are to overturn an act of Congress here, we should do so on
Cite as: 572 U. S. ____ (2014) 29
BREYER, J., dissenting
the basis of a similar record.
For one thing, an evidentiary record can help us deterÂ
mine whether or the extent to which we should defer to
Congressâ own judgments, particularly those reflecting a
balance of the countervailing First Amendment interests
I have described. Determining whether anticorruption
objectives justify a particular set of contribution limits
requires answering empirically based questions, and ap-
plying significant discretion and judgment. To what exÂ
tent will unrestricted giving lead to corruption or its
appearance? What forms will any such corruption take?
To what extent will a lack of regulation undermine public
confidence in the democratic system? To what extent can
regulation restore it?
These kinds of questions, while not easily answered, are
questions that Congress is far better suited to resolve than
are judges. Thus, while court review of contribution limits
has been and should be ârigorous,â Buckley, 424 U. S., at
29, we have also recognized that âdeference to legislative
choice is warranted.â Beaumont, 539 U. S., at 155. And
that deference has taken account of facts and circumÂ
stances set forth in an evidentiary record.
For another thing, a comparison of the pluralityâs opinÂ
ion with this dissent reveals important differences of
opinion on fact-related matters. We disagree, for example,
on the possibilities for circumvention of the base limits in
the absence of aggregate limits. We disagree about how
effectively the pluralityâs âalternativesâ could prevent
evasion. An evidentiary proceeding would permit the
parties to explore these matters, and it would permit the
courts to reach a more accurate judgment. The plurality
rationalizes its haste to forgo an evidentiary record by
noting that âthe parties have treated the question as a
purely legal one.â Ante, at 14, n. 4. But without a doubt,
the legal questionâwhether the aggregate limits are
closely drawn to further a compelling governmental interÂ
30 MCCUTCHEON v. FEDERAL ELECTION COMMâN
BREYER, J., dissenting
estâturns on factual questions about whether corruption,
in the absence of such limits, is a realistic threat to our
democracy. The plurality itself spends pages citing figures
about campaign spending to defend its âlegalâ conclusion.
Ante, at 24â26, 27â28, 30â32. The problem with such
reasoning is that this Courtâs expertise does not lie in
marshaling facts in the primary instance. That is why in
the past, when answering similar questions about the
constitutionality of restrictions on campaign contributions,
we have relied on an extensive evidentiary record proÂ
duced below to inform our decision.
Without further development of the record, however, I
fail to see how the plurality can now find grounds for
overturning Buckley. The justification for aggregate conÂ
tribution restrictions is strongly rooted in the need to
assure political integrity and ultimately in the First
Amendment itself. Part II, supra. The threat to that
integrity posed by the risk of special access and influence
remains real. Part III, supra. Even taking the plurality
on its own terms and considering solely the threat of quid
pro quo corruption (i.e., money-for-votes exchanges), the
aggregate limits are a necessary tool to stop circumvenÂ
tion. Ibid. And there is no basis for finding a lack of âfitâ
between the threat and the means used to combat it,
namely the aggregate limits. Part IV, supra.
The plurality reaches the opposite conclusion. The reÂ
sult, as I said at the outset, is a decision that substitutes
judgesâ understandings of how the political process works
for the understanding of Congress; that fails to recognize
the difference between influence resting upon public opinÂ
ion and influence bought by money alone; that overturns
key precedent; that creates huge loopholes in the law; and
that undermines, perhaps devastates, what remains of
campaign finance reform.
With respect, I dissent.
Cite as: 572 U. S. ____ (2014) 31
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
APPENDIXES
A
Existence of Large Donations
Expert Report: âDuring the 1996 election cycle, the top 50
nonfederal money donors made contributions ranging from
$530,000 to $3,287,175. . . . Soft money financing of party
campaigning exploded in the 2000 election cycle. Soft
money spending by the national parties reached $498
million, now 42% of their total spending. Raising a half
billion dollars in soft money [in 2000] took a major effort
by the national parties and elected officials, but they had
the advantage of focusing their efforts on large donors. . . .
The top 50 soft money donors . . . each contributed beÂ
tween $955,695 and $5,949,000.â 251 F. Supp. 2d, at 440
(opinion of Kollar-Kotelly, J.) (citing T. Mann Expert
Report, pp. 22, 24â25)
Candidate Solicitation of Large Donations
Judicial Finding of Fact: âIt is a common practice for
Members of Congress to be involved in raising both federal
and non-federal dollars for the national party committees,
sometimes at the partiesâ request. The personal involveÂ
ment of high-ranking Members of Congress is a major
component of raising federal and nonfederal funds.â 251
F. Supp. 2d, at 471.
Senator Paul Simon: â âWhile I was in Congress, the DemoÂ
cratic Congressional Campaign Committee (DCCC) and
the Democratic Senatorial Campaign Committee (DSCC)
would ask Members to make phone calls seeking contribuÂ
tions to the party. They would assign me a list of names,
people I had not known previously, and I would just go
32 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
down the list. I am certain they did this because they
found it more effective to have Members make calls.â â
Ibid. (quoting Simon Decl. ¶7).
Senator John McCain: â â[T]he parties encourage Members
of Congress to raise large amounts of soft money to benefit
their own and othersâ re-election. At one recent caucus
meeting, a Member of Congress was praised for raising
$1.3 million dollars for the party. James Greenwood, a
Republican Congressman from Pennsylvania, recently told
the New York Times that House leaders consider soft
money fundraising prowess in assigning chairmanships
and other sought-after jobs. . . . I share Mr. Greenwoodâs
concerns.â â Id., at 476 (quoting McCain Decl. ¶7).
Representative Christopher Shays: â âSoft money is raised
directly by federal candidates, officeholders, and national
political party leaders. National party officials often raise
these funds by promising donors access to elected officials.
The national parties and national congressional campaign
committees also request that Members of Congress make
the calls to soft money donors to solicit more funds.â â Id.,
at 471 (quoting Shays Decl. ¶18).
Representative Marty Meehan: â âMembers of Congress
raise money for the national party committees, and I have
been involved in such fund-raising for the Democratic
Party. At the request of the Party Members of Congress
go to the [DCCC] and call prospective donors from lists
provided by the Party to ask them to participate in Party
events, such as DCCC dinners or Democratic National
Committee (DNC) dinners. These lists typically consist of
persons who have contributed to the Democratic Party in
the past.â â 251 F. Supp. 2d, at 471 (quoting Meehan Decl.
in Republican National Committee v. FEC, No. 98âCVâ
1207 (DC), ¶6).
Cite as: 572 U. S. ____ (2014) 33
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Lobbyist: â âEven though soft money contributions often go
to political parties, the money is given so that the contribÂ
utors can be close to, and recognized by, Members, PresiÂ
dents, and Administration officials who have power. MemÂ
bers, not party staffers or party chairs, raise much of
the large soft money contributions.â â 251 F. Supp. 2d, at
472 (quoting Robert Rozen Decl. ¶15, a partner in a lobbyÂ
ing firm).
Senator Fred Thompson: â âWe have gone from basically a
small donor system . . . where the average person believed
they had a stake, believed they had a voice, to one of exÂ
tremely large amounts of money, where you are not a
player unless you are in the $100,000 or $200,000 range
[or more] . . . .â â Id., at 433 (quoting 147 Cong. Rec. 4622
(2001)).
Former DNC official: âFormer DNC and DSCC official and
current lobbyist Robert Hickmott testifies that even inÂ
cumbents with safe seats have incentives to raise money
for the parties. He explains: âIncumbents who were not
raising money for themselves because they were not up for
reelection would sometimes raise money for other SenaÂ
tors, or for challengers. They would send $20,000 to the
DSCC and ask that it be entered on another candidateâs
tally. They might do this, for example, if they were planÂ
ning to run for a leadership position and wanted to obtain
support from the Senators they assisted. This would
personally benefit them, in addition to doing their part to
help retain Democratic control of the Senate, which would
preserve the legislative power of all Democratic senators.â â
251 F. Supp. 2d, at 475â476 (quoting Hickmott Decl.,
Exh. A ¶18).
Judicial Finding of Fact: âThe DSCC maintains a âcreditâ
34 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
program that credits nonfederal money raised by a SenaÂ
tor or candidate to that Senator or candidateâs state party.
Amounts credited to a state party can reflect that the
Senator or candidate solicited the donation, or can serve
as a donorâs sign of tacit support for the state party or
the Senate candidate.â 251 F. Supp. 2d, at 477 (citaÂ
tion omitted).
Judicial Finding of Fact: âFederal candidates also raise
nonfederal money through joint fundraising committees
formed with national committees. One common method of
joint fundraising is for a national congressional committee
to form a separate joint fundraising committee with a
federal candidate committee. . . . Two experts characterize
the joint fundraising system as one âin which Senate canÂ
didates in effect raise[ ] soft money for use in their own
races.â â Id., at 478 (quoting J. Krasno and F. Sorauf ExÂ
pert Report, p. 13; citation omitted).
Donor Access and Influence
Judicial Finding of Fact: âThe fact that Members of ConÂ
gress are intimately involved in the raising of money for
the political parties, particularly unlimited nonfederal
money donations, creates opportunities for corruption.
The record does not contain any evidence of bribery or vote
buying in exchange for donations of nonfederal money;
however, the evidence presented in this case convincingly
demonstrates that large contributions, particularly those
nonfederal contributions surpassing the federal limits,
provide donors access to federal lawmakers which is a
critical ingredient for influencing legislation, and which
the Supreme Court has determined constitutes corrupÂ
tion.â 251 F. Supp. 2d, at 481.
Judicial Finding of Fact: âIndividual donors testify that
Cite as: 572 U. S. ____ (2014) 35
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
contributions provide access to influence federal officeÂ
holders on issue of concern to them.â Id., at 498.
Political donor: â âIâve been involved in political fundraising
long enough to remember when soft money had little value
to federal candidates. . . . [I]n recent election cycles,
Members and national committees have asked soft money
donors to write soft money checks to state and national
parties solely in order to assist federal campaigns. Most
soft money donors donât ask and donât care why the money
is going to a particular state party, a party with which
they may have no connection. What matters is that the
donor has done what the Member asked.â â Id., at 472
(quoting Wade Randlett, Chief Executive Officer, DashÂ
board Technology, Decl. ¶¶6â9).
Political donor: â âAs a result of my $500,000 soft money
donation to the DNC, I was offered the chance to at-
tend events with the President, including events at the
White House, a number of times. I was offered special acÂ
cess. . . .â â 251 F. Supp. 2d, at 499 (quoting Arnold Hiatt
Decl. ¶9).
Senator Alan Simpson: â âToo often, Membersâ first thought
is not what is right or wrong or what they believe, but how
will it affect fundraising. Who, after all, can seriously
contend that a $100,000 donation does not alter the way
one thinks aboutâand quite possibly votes onâan issue?
. . . When you donât pay the piper that finances your camÂ
paigns, you will never get any more money from that
piper. Since money is the motherâs milk of politics, you
never want to be in that situation.â â 251 F. Supp. 2d, at
481 (quoting Simpson Decl. ¶10).
Senator Alan Simpson: â âLarge donors of both hard and
soft money receive special treatment. No matter how busy
36 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
a politician may be during the day, he or she will always
make time to see donors who gave large amounts of
money. Staffers who work for Members know who the big
donors are, and those people always get their phone calls
returned first and are allowed to see the Member when
others are not.â â 251 F. Supp. 2d, at 481â482 (quoting
Simpson Decl. ¶9).
Senator David Boren: â âDonations, including soft money
donations to political parties, do affect how Congress
operates. Itâs only natural, and happens all too often, that
a busy Senator with 10 minutes to spare will spend those
minutes returning the call of a large soft money donor
rather than the call of any other constituent. . . . I know
from my first-hand experience and from my interactions
with other Senators that they did feel beholden to large
donors.â 251 F. Supp. 2d, at 482 (quoting Boren Decl.
¶¶7â8).
Senator Dale Bumpers: â[Senator Bumpers] had âheard
that some Members even keep lists of big donors in their
offices,â and [stated] that âyou cannot be a good Democratic
or good Republican Member and not be aware of who gave
money to the party.â â 251 F. Supp. 2d, at 487 (quoting
Bumpers Decl. ¶¶18, 20).
Representative Christopher Shays: â âThe candidates know
who makes these huge contributions and what these
donors expect. Candidates not only solicit these funds
themselves, they meet with big donors who have imÂ
portant issues pending before the government; and someÂ
times, the candidatesâ or the partyâs position appear to
change after such meetings.â â 251 F. Supp. 2d, at 487
(quoting 148 Cong Rec. 1305 (2002)).
Senator Warren Rudman: â âLarge soft money contriÂ
Cite as: 572 U. S. ____ (2014) 37
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
butions in fact distort the legislative process. They affect
what gets done and how it gets done. They affect whom
Senators and House members see, whom they spend their
time with, what input they get . . . .â â 251 F. Supp. 2d, at
496 (quoting Rudman Decl. ¶¶7, 9).
Senator Paul Simon: â âWhile I realize some argue donors
donât buy favors, they buy access. That access is the abuse
and it affects all of us. . . . You feel a sense of gratitude for
their support. . . . Because few people can afford to give
over $20,000 or $25,000 to a party committee, those people
who can will receive substantially better access to elected
federal leaders than people who can only afford smaller
contributions or can not afford to make any contributions.
When you increase the amount that people are allowed to
give, or let people give without limit to the parties, you
increase the danger of unfair access.â â 251 F. Supp. 2d, at
496 (quoting Simon Decl. ¶16).
Senator John McCain: â âAt a minimum, large soft money
donations purchase an opportunity for the donors to make
their case to elected officials . . . in a way average citizens
cannot.â â 251 F. Supp. 2d, at 496 (quoting McCain
Decl. ¶6).
Senator Warren Rudman: â âI understand that those who
opposed passage of the Bipartisan Campaign Reform
Act, and those who now challenge its constitutionality in
Court, dare elected officials to point to specific [instances
of vote buying]. I think this misses the point altogether.
[The access and influence accorded large donors] is inherÂ
ently, endemically, and hopelessly corrupting. You canât
swim in the ocean without getting wet; you canât be part of
this system without getting dirty.â â 251 F. Supp. 2d, at
481 (quoting Rudman Decl. ¶10).
38 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Judicial Finding of Fact: âLobbyists state that their clients
make donations to political parties to achieve access.â 251
F. Supp. 2d, at 489.
Letter from Republican National Committee (RNC) staffer:
â âAs you know, [this executive] has been very generous
to the RNC. If there is any way you can assist [in obtainÂ
ing an appointment with an important Senator], it would
be greatly appreciated.â â Id., at 501 (quoting MemoranÂ
dum from Tim Barnes, RNC, to Royal Roth).
Letter from RNC: â[The] letter from RNC to Senator Hagel
staffer [asks] Senator Hagel to meet with a donor for four
âkeyâ reasons including: . . . â[h]e just contributed $100,000
to the RNC.â â Ibid. (quoting a letter in the judicial record).
Judicial Finding of Fact: âThe political parties have strucÂ
tured their donation programs so that donors are encourÂ
aged to contribute larger amounts in order to get access to
more exclusive and intimate events at which Members or
Congress are present. The evidence also shows that the
parties use the enticement of access to secure larger donaÂ
tions. â Id., at 502 (quoting a document in the judicial
record).
Cite as: 572 U. S. ____ (2014)
39
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
B
Table 1: Donations to Support the Party
Base
Total Contri-
Limit Number
Years butions (per 2-
(per (committees)
year cycle)
year)
National
Party
Committees $32,400 3 2 $194,400
State Party
Committees $10,000 50 2 $1,000,000
Total $1,194,400
Source: See 2 U. S. C. §§441a(a)(1)(B), (D); 78 Fed. Reg. 8532.
Table 2(a): The $3.6 Million Check
Total
Base
Number Years Contribu-
Limit
(committees/ or Elec- tions
(per year/
candidates) tions (per 2-year
election)
cycle)
National
Party ComÂ
mittees $32,400 3 2 $194,400
State Party
Committees $10,000 50 2 $1,000,000
Candidates
(Senate) $2,600 33 2 $171,600
Candidates
(House) $2,600 435 2 $2,262,000
Total $3,628,000
Source: See 2 U. S. C. §§441a(a)(1)(A), (B), (D); 78 Fed. Reg. 8532.
40 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Table 2(b): Circumvention of the $3.6 Million Check
Direct Total
Contribu- Direct
Number
tions to Elec- Contribu-
(committees/
Candidate tions tions (per
candidates)
(per 2-year
election) cycle)
National Party
Committees $5,000 3 2 $30,0001
State Party
Committees $5,000 50 2 $500,000
Candidates
(Senate) $2,000 33 2 $132,000
Candidates
(House) $2,000 435 2 $1,740,000
Total Direct
Contributions $2,372,000
Total IEs
Independent Expendi-
Elec- (per
tures (IEs)
tions general
(per general election)
election)
House Senate
Candidate Candidate
$46,600â
National Party $46,600 $94,100 $93,100
Committees (min)2 (min)3 1 (min)
$46,600â
State Party $46,600 $94,100 $93,100
Committees (min)2 (min)3 1 (min)
$46,600â
$46,600 $94,100 $93,100
Total IEs (min)2 (min)3 (min)
1 $45,400
for a Senate candidate. §441a(h); 78 Fed. Reg. 8532.
2 If
the State has more than one House seat, this figure is $46,600. If
it has one House seat, this figure is $93,100. Id., at 8531.
3 This figure ranges from $93,100 (Del.) to $2,68 million (Cal.),
depending on the Stateâs population. Ibid.
Source: See 2 U. S. C. §§432(e)(3)(B), 441a(a)(2)(A); 11 CFR
§110.3(b); 78 Fed. Reg. 8530â8532.
Cite as: 572 U. S. ____ (2014)
41
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Table 3: Proliferating PACs
Total
Contribu-
Base Limit Number
Years tions
(per year) (PACs)
(per 2-year
cycle)
Rich Donor One $5,000 200 2 $2,000,000
Rich Donor Two $5,000 200 2 $2,000,000
Rich Donor Three $5,000 200 2 $2,000,000
Rich Donor Four $5,000 200 2 $2,000,000
Rich Donor Five $5,000 200 2 $2,000,000
Rich Donor Six $5,000 200 2 $2,000,000
Rich Donor Seven $5,000 200 2 $2,000,000
Rich Donor Eight $5,000 200 2 $2,000,000
Rich Donor Nine $5,000 200 2 $2,000,000
Rich Donor Ten $5,000 200 2 $2,000,000
Total Contribu-
tions to PACs
(by 10 Donors) $20,000,000
Total Contribu-
tions by Each
Donor $2,000,000
Base Limit Number
Elec-
(per (candi-
tions
election) dates)
PAC One $5,000 10 2 $100,000
PAC Two $5,000 10 2 $100,000
PAC Three $5,000 10 2 $100,000
... etc. etc. etc. etc.
PAC 200 $5,000 10 2 $100,000
Total Contribu-
tions by PACs
(to 10 Candi-
dates) $20,000,000
Total Contribu-
tions to Each
Candidate $2,000,000
Source: 2 U. S. C. §§441a(a)(1)(C), 441a(a)(2)(A).
42 MCCUTCHEON v. FEDERAL ELECTION COMMâN
Appendix C to ,opinion of BREYER, J.
BREYER J., dissenting
C
Table 1: Costs of a Federal Seat
2012 Elections
House
Average House Winner Spent $1,567,293
Average House Loser Spent $496,637
Average Winner's Receipts from PACs $665,728
Senate
Average Senate Winner Spent $11,474,077
Average Senate Loser Spent $7,435,446
Average Winner's Receipts from PACs $2,185,650
Source: Center for Responsive Politics, Election Stats, online at
http://www.opensecrets.org/bigpicture/elec_stats.php.
Table 2: Leadership PACs
Number of Leadership
PACs Total Contributed
(contributing to federal (to federal candidates)
candidates)
2000 Elections 175 $17,000,000
2002 Elections 228 $25,000,000
2004 Elections 274 $30,700,000
2006 Elections 336 $44,700,000
2008 Elections 378 $40,600,000
2010 Elections 396 $44,000,000
2012 Elections 456 $46,400,000
Source: Center for Responsive Politics, Leadership PACs, online at
http://www.opensecrets.org/pacs.
Cite as: 572 U. S. ____ (2014)
43
Appendix C to,opinion of BREYER, J.
BREYER J., dissenting
Table 3: Joint Fundraising Committees
Number of Joint
âSenateâ âHouseâ
Fundraising
Related Related
Committees
2008 Elections 269 31 34
2010 Elections 367 37 60
2012 Elections 508 67 89
Source: Federal Election Commission, online at
http://www.fec.gov/data/CommitteeSummary.do.