Amicus Curiae Brief — Federal Election Commission, Appellant v. Ted Cruz for Senate, et al.

No. 21-12

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION,

Appellant,

v.

TED CRUZ FOR SENATE and

SENATOR RAFAEL EDWARD “TED” CRUZ,

Appellees.

On Appeal From The

United States District Court

For The District of Columbia

BRIEF OF SENATOR MITCH MCCONNELL

AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

DONALD F. MCGAHN II

Counsel of Record

NOEL J. FRANCISCO

ROBERT LUTHER III

ANDREW J.M. BENTZ

J. BENJAMIN AGUIÑAGA

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

dmcgahn@jonesday.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

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

I.

II.

THIS COURT HAS SPENT TWO DECADES

DISMANTLING BCRA ............................................ 4

A.

McConnell began chipping away

at BCRA ...................................................... 4

B.

Subsequent decisions dealt

significant blows to BCRA ......................... 7

BCRA’S LOAN-REPAYMENT LIMIT IS

THE LATEST UNCONSTITUTIONAL

PROVISION TO BE CHALLENGED .......................... 17

A.

BCRA’s loan-repayment limit

burdens political speech ........................... 18

B.

The FEC fails to show BCRA’s loanrepayment limit serves a legitimate

interest or is appropriately tailored ........ 21

III. THE COURT SHOULD STRIKE DOWN WHAT

REMAINS OF BCRA ............................................. 26

CONCLUSION ......................................................... 32

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) .............................................. 31

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004) ................................ 18

Ariz. Free Enter. Club’s Freedom

Club PAC v. Bennett,

564 U.S. 721 (2011) .................................... 3, 21, 24

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam) ......................passim

California v. Texas,

141 S. Ct. 2104 (2021) .......................................... 28

Citizens United v. FEC,

558 U.S. 310 (2010) .......................................passim

Colo. Republican Fed. Campaign

Comm. v. FEC,

518 U.S. 604 (1996) .......................................... 6, 21

Davis v. FEC,

554 U.S. 724 (2008) .......................................passim

Emily’s List v. FEC,

581 F.3d 1 (D.C. Cir. 2009) .................................... 2

Eu v. S.F. Cnty. Democratic Cent. Comm.,

489 U.S. 214 (1989) .............................................. 18

FEC v. Nat’l Conservative Pol. Action Comm.,

470 U.S. 480 (1985) .............................................. 22

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) .......................................passim

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) .............................................. 13

INS v. Chadha,

462 U.S. 919 (1983) .............................................. 31

McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C. 2003) ................ 31, 32

McConnell v. FEC,

540 U.S. 93 (2003) .........................................passim

McCutcheon v. FEC,

572 U.S. 185 (2014) .......................................passim

Murphy v. NCAA,

138 S. Ct. 1461 (2018) .......................................... 27

Seila L. LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183 (2020) .......................................... 27

United Mine Workers of Am., Dist. 12 v.

Ill. State Bar Ass’n,

389 U.S. 217 (1967) .............................................. 20

United States v. Jackson,

390 U.S. 570 (1968) .............................................. 31

Wis. Right to Life, Inc. v. FEC,

546 U.S. 410 (2006) ................................................ 7

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. I ................................................. 21

52 U.S.C. § 30101 ...................................................... 30

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

52 U.S.C. § 30116 ................................................ 17, 30

52 U.S.C. § 30125 ...................................................... 30

Pub. L. No. 107-155, 116 Stat. 81 (2002) .................. 27

OTHER AUTHORITIES

Ted Barrett & Dana Bash, Campaign

Finance Battle Moves to Senate,

CNN (Feb. 15, 2002) ............................................. 28

Lillian R. Bevier, Campaign Finance

Reform: Specious Arguments,

Intractable Dilemmas, 94 COLUM.

L. REV. 1258 (1994) .............................................. 28

11 C.F.R. § 100.87...................................................... 30

11 C.F.R. § 100.147 .................................................... 30

11 C.F.R. § 110.1........................................................ 23

Campaign Fin. Inst., The Cost of Winning

an Election, 1986–2018 (2018) ............................. 20

Campaign Finance Bill Likely Dead for

the Year, CNN (Feb. 26, 1998) ............................. 28

147 CONG. REC. 3969 (Mar. 20, 2001)

(statement of Sen. McCain) ................................. 29

147 CONG. REC. 3970 (Mar. 20, 2001)

(statement of Sen. Hutchison) ............................. 24

147 CONG. REC. 3971 (Mar. 20, 2001)

(statement of Sen. Dodd) ..................................... 24

v

TABLE OF AUTHORITIES

(continued)

Page(s)

147 CONG. REC. 3977 (Mar. 20, 2001)

(statement of Sen. Levin) ..................................... 24

147 CONG. REC. S2852 (daily ed. Mar.

26, 2001) (statement of Sen. Reid)....................... 25

148 CONG. REC. S2160–61

(daily ed. Mar. 20, 2002) ...................................... 28

FEC, Contribution limits for 2017–2018

(Feb. 16, 2017) ...................................................... 23

Kelly Field, Shays-Meehan Campaign

Finance Reform Clears the House,

Newswire (Feb. 13, 2002) ..................................... 28

Richard Wolf Hess, Comment, No Fair

Play for Millionaires? McCainFeingold’s Wealthy Candidate

Restrictions and the First Amendment,

70 U. CHI. L. REV. 1067 (2003) ............................. 16

Caroline C. Hunter et al., Statement on

Advisory Opinion 2012-11 (Free

Speech), FEC (May 9, 2012) ................................. 14

Samuel Issacharoff, Comment, On Political

Corruption, 124 HARV. L. REV. 118 (2010) .......... 29

William M. Welch & Jim Drinkard, Passage

Ends Long Struggle for McCain, Feingold,

USA Today (Mar. 20, 2002) ................................. 28

The White House, President Signs Campaign

Finance Reform Act: Statement by the

President (Mar. 27, 2002) ....................................... 2

INTEREST OF AMICUS CURIAE

Amicus Senator Mitch McConnell is the senior

United States Senator from the Commonwealth of

Kentucky. He is the Republican Leader in the United

States Senate and the former Chairman of the

National Republican Senatorial Committee, a national

political party committee comprising the Republican

members of the United States Senate.

Senator McConnell is a respected senior

statesman and is one of the Senate’s strongest

defenders of the First Amendment’s guarantees. For

many years, Senator McConnell has participated in

litigation defending First Amendment freedoms. For

example, he was the lead plaintiff challenging the

Bipartisan Campaign Reform Act in McConnell v.

FEC, 540 U.S. 93 (2003), and he participated as

amicus both by brief and oral argument in Citizens

United v. FEC, 558 U.S. 310 (2010), which overruled

McConnell in part.1

1 In accordance with Supreme Court Rule 37.3(a), all parties

have consented to the filing of this brief. As required by Supreme

Court Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amicus and his counsel

made any monetary contribution intended to fund this brief.

2

SUMMARY OF ARGUMENT

From the beginning, the Bipartisan Campaign

Reform Act of 2002 (BCRA) was a constitutional train

wreck. It was the “most significant abridgment of the

freedoms of speech and association since the Civil

War.” McConnell, 540 U.S. at 264 (opinion of Thomas,

J.). In fact, even as he signed BCRA into law,

President George W. Bush recognized that its

provisions “present serious constitutional concerns.”

The White House, President Signs Campaign Finance

Reform Act: Statement by the President (Mar. 27,

2002), https://tinyurl.com/zmncwdby.

President Bush was right. And though this Court

initially struggled to save BCRA’s provisions, the

Court has now spent the better part of two decades

excising BCRA’s patently unconstitutional features.

See McConnell, 540 U.S. at 114–246 (upholding, in

badly fractured opinions, some provisions against

facial challenges). Those include the ban on political

contributions by minors, id. at 232; a restriction on

party committees engaging in both coordinated and

independent expenditures, id. at 217–19; the

asymmetrical contribution limits for opponents of selffinanced candidates, Davis v. FEC, 554 U.S. 724, 743–

44 (2008); the ban on corporate and union speech

before an election, Citizens United, 558 U.S. at 365–

66; and aggregate limits on donor contributions,

McCutcheon v. FEC, 572 U.S. 185, 218 (2014); see also

FEC v. Wis. Right to Life, Inc. (WRTL), 551 U.S. 449,

482 (2007) (opinion of Roberts, C.J.) (holding the ban

on corporate issue ads before an election

unconstitutional as applied); Emily’s List v. FEC, 581

F.3d 1, 4 (D.C. Cir. 2009) (Kavanaugh, J.) (striking

3

down FEC’s cap on non-profits’ election-related

expenditures).

This case presents the latest First Amendment

challenge to yet another of BCRA’s unconstitutional

features: the prohibition on a campaign using postelection contributions to repay a candidate’s personal

loans over $250,000. As the court below concluded,

that limit “runs afoul of the First Amendment.”

J.S.App.6a.

The burden imposed by BCRA’s loan-repayment

limit “is evident and inherent in the choice that

confronts” candidates who wish to use personal loans

for campaign financing. Ariz. Free Enter. Club’s

Freedom Club PAC v. Bennett, 564 U.S. 721, 745

(2011). The limit means a candidate might not recoup

amounts in excess of $250,000; thus the limit chills

core political speech, especially speech by unknown

challengers who need to spend more to be heard. And

the loan-repayment limit does not serve any legitimate

government interest. As this Court has held, the only

interest that can justify a burden on core political

speech is “preventing corruption or the appearance of

corruption.” McCutcheon, 572 U.S. at 206. The

government cannot even pretend that the limit serves

that interest. After all, the limit also applies to

candidates who lose the election. J.S.App.32a.

The unconstitutionality of BCRA’s loanrepayment limit is obvious. But “[e]nough is enough.”

WRTL, 551 U.S. at 478. This Court’s decisions over the

past decade have rendered BCRA the Humpty

Dumpty of campaign-finance law, a patchwork of

provisions that Congress never would have approved

standing alone and that can never be put back

4

together again. There is no reason to let BCRA limp

along, no need for further piecemeal surgery by this

Court: the Court should strike the entire statute.

This case presents the ideal opportunity to do so.

If this Court holds the loan-repayment limit

unconstitutional, the key provision that made BCRA

politically viable (the “Millionaire’s Amendment”) will

be completely scuttled. See Davis, 554 U.S. at 743–44

(striking the other portion of the amendment). The

absence of that amendment would have doomed BCRA

at a roll call vote in 2002; it should certainly doom

what is left of BCRA twenty years later.

It is time to put BCRA out to pasture.

ARGUMENT

I.

THIS

COURT HAS

DISMANTLING BCRA.

SPENT

TWO

DECADES

Constitutional doubts have plagued BCRA since

its inception. In turn, those doubts have required this

Court again and again to adjudicate BCRA’s

provisions. Although in McConnell the Court initially

upheld much of BCRA on its face (though even then

inflicting some flesh wounds to the law), Senator

McConnell’s original critique has proven prescient.

And the Court’s subsequent decisions have inflicted

fatal blows to BCRA, resulting in a legislative regime

that looks nothing like the one Congress passed.

A. McConnell began chipping away at BCRA.

BCRA’s journey in this Court began shortly after

Congress passed the law. Just a year after President

Bush signed the law, this Court considered facial

challenges to nearly all of BCRA’s provisions in

McConnell. Through splintered opinions, a bare

5

majority upheld most provisions of BCRA. It was

indeed “a sad day for the freedom of speech.”

McConnell, 540 U.S. at 248 (opinion of Scalia, J.). Still,

fractures in BCRA’s foundation were apparent.

For one, several Justices recognized BCRA for

what it was: “an incumbency protection plan.” Id. at

306 (opinion of Kennedy, J.). And four Justices would

have held many of BCRA’s key provisions

unconstitutional. See id. at 286–341; see also id. at

264–86 (opinion of Thomas, J.). For example, Justice

Kennedy, writing for three Justices, explained, “Even

a cursory review of the speech and association

burdens” of Title I of BCRA makes its “First

Amendment infirmities obvious.” Id. at 289 (opinion of

Kennedy, J.). Title I contains draconian limits on the

receipt and use of soft money. It “bars individuals with

shared beliefs from pooling their money above limits

set by Congress to form a new third party.” Id. It also

“bars national party officials from soliciting or

directing soft money to state parties for use on a state

ballot initiative” even if “no federal office appears on

the same ballot.” Id. Because “Congress has no valid

interest in regulating soft-money contributions that do

not pose quid pro quo corruption potential,” according

to many Justices, the key features of BCRA Title I

could not be constitutionally justified. Id. at 321; see

also id. at 268–69 (opinion of Thomas, J.).

Likewise with Section 203. That provision (which

would finally fall in Citizens United ) prohibited

corporations and labor unions from using money from

their general treasury to fund electioneering

communications. Section 203 “silence[d] political

speech central to the civic discourse that sustains and

informs our democratic processes.” Id. at 323 (opinion

6

of Kennedy, J.). Four Justices therefore also would

have held this provision unconstitutional. Id.; see also

id. at 274–75 (opinion of Thomas, J.).

Moreover, while a bare majority of the Court

upheld much of BCRA, the McConnell Court

unanimously agreed that at least some provisions

were unconstitutional. For example, the Court

invalidated Section 213 of BCRA, which required a

political

party—“during

the

postnomination,

preelection period”—to forfeit “the right to make

independent expenditures for express advocacy” if it

“wish[ed] to spend more than $5,000 in coordination

with its nominee.” Id. at 213, 216–17 (majority

opinion) (emphasis omitted); see also Colo. Republican

Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996)

(striking down pre-BCRA provision).

Section 318 of BCRA met a similar fate. That

provision prohibited individuals under the age of 18

“from making contributions to candidates and

contributions or donations to political parties.”

McConnell, 540 U.S. at 231. The Court emphasized,

“Minors enjoy the protection of the First Amendment.”

Id. And “[l]imitations on the amount that an

individual may contribute to a candidate or political

committee impinge on the protected freedoms of

expression and association.” Id. The Court held that

the government failed to “advance[] an important

interest” that could justify overriding these basic

principles. Id. at 232.

Finally, the majority made clear that its ruling

was not the last word on BCRA. For instance, although

five Justices rejected a facial challenge to Section 203,

they left the door open for as-applied challenges. See

7

Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411–12

(2006) (“In upholding § 203 against a facial challenge

[in McConnell ], we did not purport to resolve future

as-applied challenges.”). 2 Those challenges would

eventually succeed. WRTL, 551 U.S. at 482. Similarly,

although McConnell rejected challenges to a provision

in BCRA’s so-called Millionaire’s Amendment, the

Court did so because no plaintiff had standing to

challenge the provision. 540 U.S. at 229–30. That

provision, too, would fall in due course. Davis, 554 U.S.

at 743–44.

McConnell started this Court down an inevitable

path to dismantle BCRA, brick by brick. And though

McConnell was the Court’s first foray into BCRA’s

constitutional bramble, it would not be the last.

B. Subsequent decisions dealt significant

blows to BCRA.

McConnell proved to be the high watermark for

BCRA, as a steady stream of follow-on decisions

undermined BCRA.

1. BCRA’s downward spiral accelerated in 2007

with WRTL, where the Court held that Section 203 of

BCRA was unconstitutional as applied. Section 203

made it “a federal crime for any corporation to

broadcast, shortly before an election, any

communication that names a federal candidate for

2 Remarkably, the FEC argued that as-applied challenges

were precluded by McConnell, even though the first line in its

McConnell brief acknowledged that the challenges “arise out of

pre-enforcement facial constitutional challenges.” Br. for

Appellees at 2, McConnell, 540 U.S. 93 (No. 02-1674); see also Br.

for Appellee at 18–25, Wis. Right to Life, 546 U.S. 410 (No. 041581).

8

elected office and is targeted to the electorate.” 551

U.S. at 455–56.

McConnell upheld Section 203 against a facial

challenge even though the provision encompassed not

only campaign speech but also speech about public

issues that also mentions a candidate. 540 U.S. at

204–05. McConnell saw no overbreadth concern to the

extent the speech covered was the “functional

equivalent” of express advocacy. Id. at 206–07.

WRTL took that purported distinction head on.

There, a nonprofit corporation sought to broadcast

shortly before a primary a series of radio

advertisements that identified two senators. 551 U.S.

at 464. The advertisements were not “express

advocacy” or the functional equivalent; that is, the

advertisements were not advocating the election or

defeat of the senators, but rather urging voters to tell

the senators to oppose a filibuster of judicial nominees.

Nonetheless, because the advertisements named a

candidate for federal office, they were still prohibited

by Section 203.

The Court thus confronted the question left open

in McConnell: Was Section 203 constitutional to the

extent it banned issue advocacy? This Court answered

emphatically, no. The Court accepted that, under

McConnell, Section 203 was constitutional “to the

extent it regulates express advocacy or its functional

equivalent.” Id. at 465. It nonetheless held that the

radio advertisements were “plainly not the functional

equivalent of express advocacy,” because they

“focus[ed] on a legislative issue,” did “not mention an

election, candidacy,” and did “not take a position on a

candidate’s character, qualifications, or fitness for

9

office.” Id. at 470. Thus, Section 203 could only be

constitutionally applied “if it is narrowly tailored to

further a compelling interest.” Id. at 476.

But the government “identif[ied] no interest

sufficiently compelling to justify burdening [the

corporation’s] speech.” Id. at 481. Thus, the

prohibition could not be constitutionally applied to the

advertisements. Id.

In addition, three Justices would have gone even

further and held, directly contrary to McConnell, that

Section 203 is facially unconstitutional. Id. at 499–500

(opinion of Scalia, J.). And Justice Alito acknowledged

the possibility that the Court would “be asked in a

future case to reconsider the holding in [McConnell ]

that § 203 is facially constitutional.” Id. at 482–83

(opinion of Alito, J.,). That case would come in just a

couple of years.

2. In the meantime, the Court saw little reprieve

from reviewing BCRA. In the very next Term, the

Court considered a facial challenge to Section 319 of

BCRA in Davis, 554 U.S. 724. Section 319—“part of

the so-called ‘Millionaire’s Amendment’”—provided

that, “when a candidate spends more than $350,000 in

personal funds ... , that candidate’s opponent may

qualify to receive both larger individual contributions

than would otherwise be allowed and unlimited

coordinated party expenditures”—even though the

self-financing candidate remained subject to the lower,

original limits. Id. at 729, 736, 738. McConnell did not

reach the constitutionality of this provision because

the Court concluded no plaintiff had standing. 540

U.S. at 229–30. But now that a plaintiff had standing,

this Court held that this “new, asymmetrical

10

regulatory scheme” could not stand. Davis, 554 U.S. at

729.

Davis began by observing that “[w]e have never

upheld the constitutionality of a law that imposes

different contribution limits for candidates who are

competing against each other.” Id. at 738. And Section

319(a) “imposes an unprecedented penalty on any

candidate who robustly exercises [his] First

Amendment right.” Id. at 739. A candidate who says

too much “must shoulder a special and potentially

significant burden.” Id. That burden meant that

Section 319(a) could only be sustained if it were

“justified by a compelling state interest.” Id. at 740.

There was no serious contention that the

asymmetrical limit was justified by an interest in

eliminating corruption or the perception of corruption.

Id. Instead, the government’s principal argument was

that the limits were “justified because they ‘level

electoral opportunities for candidates of different

personal wealth.’” Id. at 741. But not only did this

Court’s precedents “provide no support for the

proposition that this is a legitimate government

objective,” the proposition “has ominous implications.”

Id. at 741–42. “[I]t would permit Congress to arrogate

the voters’ authority to evaluate the strengths of

candidates competing for office.” Id. at 742. The Court

explained, “Different candidates have different

strengths.” Id. Some are wealthy, some are famous.

“Leveling electoral opportunities means making and

implementing judgments about which strengths

should be permitted to contribute to the outcome of an

election. The Constitution, however, confers upon

voters, not Congress, the power to choose the Members

of the House of Representatives, and it is a dangerous

11

business for Congress to use the election laws to

influence

the

voters’

choices.”

Id.

“[T]he

unprecedented step of imposing different contribution

and coordinated party expenditure limits on

candidates vying for the same seat is antithetical to

the First Amendment.” Id. at 743–44.

3. The next case was the one Justice Alito presaged

in WRTL, a case that challenged one of McConnell ’s

key holdings. The case was Citizens United.

Through that case, the Court finally corrected one

of McConnell ’s most grievous errors. Citizens United

put an end to Section 203 of BCRA, which prohibited

corporations

from

funding

electioneering

communications close to elections. The Citizens United

Court explained, “If the First Amendment has any

force, it prohibits Congress from fining or jailing

citizens, or associations of citizens, for simply

engaging in political speech.” 558 U.S. at 349.

In Citizens United, a nonprofit corporation sought

to broadcast on cable television a documentary

regarding then-Senator Hillary Clinton (and

advertisements for the documentary) within 30 days

of the 2008 primary elections. Id. at 319–21. The Court

was asked whether Section 203 barred these

communications and, if it did, whether Section 203

was constitutional. At long last, the Court had the

opportunity to correct one of McConnell ’s most serious

errors.

The Court’s opinion began by putting the

communication

at

issue

in

context.

This

communication was not like the radio advertisements

in WRTL, which mentioned candidates but did not

expressly advocate for or against them. Instead, the

12

documentary and advertisements in Citizens United

fell squarely within Section 203’s prohibition on

corporations using their general treasury funds to

make independent expenditures for “electioneering

communications.” Id. at 320–29. The Court also

concluded that it could not “resolve this case on a

narrower ground without chilling political speech,

speech that is central to the meaning and purpose of

the First Amendment.” Id. at 329. The Court had to

confront directly McConnell ’s conclusion that Section

203 was facially constitutional.

The Citizens United Court then roundly rejected

McConnell ’s conclusion. Citizens United observed,

“The purpose and effect of [Section 203] is to prevent

corporations,

including

small

and

nonprofit

corporations, from presenting both facts and opinions

to the public.” Id. at 355. “Thus, the following acts

would all be felonies”: “The Sierra Club runs an ad,

within the crucial phase of 60 days before the general

election, that exhorts the public to disapprove of a

Congressman who favors logging in national forests;

the National Rifle Association publishes a book urging

the public to vote for the challenger because the

incumbent U.S. Senator supports a handgun ban; and

the American Civil Liberties Union creates a Web site

telling the public to vote for a Presidential candidate

in light of that candidate’s defense of free speech.” Id.

at 337.

No legitimate government interest could justify

such an onerous burden on political speech. The Court

thus had little trouble rejecting the justifications that

the government proffered. For example, the

government half-heartedly asserted that Section 203

served an “antidistortion” interest. Id. at 349. That is,

13

the ban ameliorated the distorting effects of

aggregations of wealth accumulated in corporations.

This was the interest McConnell had relied upon to

uphold Section 203. See 540 U.S. at 203–09. But if that

interest were legitimate, Citizens United explained,

“the Government could prohibit a corporation from

expressing political views in media beyond those

presented here, such as by printing books.” 558 U.S. at

349. And “[p]olitical speech is ‘indispensable to

decisionmaking in a democracy, and this is no less true

because the speech comes from a corporation rather

than an individual.’” Id. (quoting First Nat’l Bank of

Bos. v. Bellotti, 435 U.S. 765, 777 (1978)).

The Court likewise rejected the government’s

claim that Section 203 served an anticorruption

interest. Limits on direct contributions, the Court

explained, can “ensure against the reality or

appearance of corruption.” Id. at 357. But “[t]he

anticorruption interest is not sufficient to displace the

speech here in question”—that is, independent

expenditures. Id. “The absence of prearrangement and

coordination of an expenditure with the candidate or

his agent not only undermines the value of the

expenditure to the candidate, but also alleviates the

danger that expenditures will be given as a quid pro

quo for improper commitments from the candidate.”

Id. Trying to prohibit the appearance of influence or

favoritism is not enough to justify limits on speech

because “[i]ngratiation and access … are not

corruption.” Id. at 360.

The Court also rejected the asserted interest in

“protecting dissenting shareholders from being

compelled to fund corporate political speech.” Id. at

361. Just like the antidistortion rationale, this

14

asserted interest would allow the government to

suppress all political speech by corporations. “The

First Amendment does not allow that power.” Id. In

addition, shareholders can always sell their shares if

they are unhappy with a corporation’s message.

In sum, the Court found that Section 203’s attempt

“to command”—on pain of criminal penalties—“where

a person may get his or her information or what

distrusted source he or she may not hear” was no more

than “censorship to control thought.” Id. at 356. “This

is unlawful.” Id. Thus, the Court invalidated Section

203, reversing one of the key holdings of McConnell.

Id. at 365–66.3

4. The steady march of invalidating provisions of

BCRA continued in this Court’s most recent tango

with BCRA. In 2014, the Court invalidated BCRA’s

aggregate limits on “how much money a donor may

contribute in total to all candidates or committees.”

McCutcheon, 572 U.S. at 192. Perhaps most

importantly, the McCutcheon Court made clear once

and for all that the only legitimate justification for

regulating speech in the election context is to prevent

“what we have called ‘quid pro quo’ corruption or its

appearance.” Id. “Campaign finance restrictions that

pursue other objectives … impermissibly inject the

3 Although Citizens United is often called the fight to end all

fights, it was not. The FEC and numerous state agencies continue

to use precisely the same sort of multi-factor, subjective balancing

tests rejected in WRTL when ascertaining whether citizens need

to undertake the voluminous and intrusive filings required of

political committees—including BCRA’s failed definition of

electioneering communications. See Caroline C. Hunter et al.,

Statement on Advisory Opinion 2012-11 (Free Speech) 11–13,

FEC (May 9, 2012), https://tinyurl.com/2p85j6ym.

15

Government ‘into the debate over who should govern.’”

Id. “And those who govern should be the last people to

help decide who should govern.” Id.

McCutcheon recognized that BCRA’s aggregate

limits did not serve the interest of preventing

corruption or the appearance of corruption. “The

difficulty” for the government, the Court explained, “is

that once the aggregate limits kick in, they ban all

contributions of any amount.” Id. at 210. Once an

individual contributed $48,600 to federal candidates,

BCRA prohibited him from contributing any more

money to any candidate. Thus, “[t]he individual may

give up to $5,200 each to nine candidates, 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).” Id. at 204. Once the

limit is reached, federal law “den[ies] the individual all

ability to exercise his expressive and associational

rights by contributing to someone who will advocate

for his policy preference.” Id. But “Congress’s selection

of a $5,200 base limit indicates its belief that

contributions of that amount or less do not create a

cognizable risk of corruption.” Id. at 210. In other

words, “[i]f there is no corruption concern in giving

nine candidates up to $5,200 each, it is difficult to

understand how a tenth candidate can be regarded as

corruptible if given $1,801, and all others corruptible

if given a dime.” Id.

Accordingly, the Court held that forcing a donor to

“limit the number of candidates he supports” and

“choose which of several policy concerns he will

advance” constitutes “clear First Amendment harm[].”

Id. at 204. And because “the aggregate limits on

16

contributions do not further the only governmental

interest this Court [has] accepted as legitimate” to

justify limits on political speech, the limits were

unconstitutional. Id. at 227.

*

*

*

From McConnell through McCutcheon, the trend

is clear: BCRA is doomed. This Court’s decisions have

left BCRA in tatters. Sections 203, 213, and 319, along

with BCRA’s aggregate limits, are dead letters. The

invalidation of Sections 203 and 213 stuck a dagger

through Title II of BCRA, which comprised only eight

short sections to begin with (seven, if you don’t count

the definitional section). Moreover, the invalidation of

Section 319 in Title III gutted part of the so-called

Millionaire’s Amendment that was an important

counterbalance to heightened regulation of other

contributions in Title I. See, e.g., Richard Wolf Hess,

Comment, No Fair Play for Millionaires? McCainFeingold’s Wealthy Candidate Restrictions and the

First Amendment, 70 U. CHI. L. REV. 1067, 1070 (2003)

(stating that the Amendment passed “after lastminute tweaking of its provisions and in exchange for

a total ban on unlimited, non-federal contributions, or

soft money”). And once this Court invalidates BCRA’s

loan-repayment limit at issue in this case, see infra pp.

17–26, the Millionaire’s Amendment, the amendment

that made BCRA legislatively palatable, will no longer

exist.

Even though the so-called “soft-money” limits of

BCRA’s Title I still persist, they are not long for this

world. Given that four Justices in McConnell (one of

whom is still on the Court) gave compelling reasons to

jettison most of those limits on their face, it is likely

17

that, in time, this Court will revisit (and correct)

McConnell ’s holding on that score, at least with

respect to as-applied challenges. See McConnell, 540

U.S. at 286–341 (opinion of Kennedy, J.); see also id.

at 264–86 (opinion of Thomas, J.) (same).

In any event, the BCRA of today is a lopsided

legislative regime that would not have passed

Congress in 2002. It lacks the corporate teeth that

Title II was supposed to provide. It lacks the wealth

provisions in Title III that were supposed to hold up

one end of a legislative compromise for the extreme

“soft money” measures in Title I—which themselves

hold on by a dubious thread.

From McConnell to McCutcheon, the theme is

clear: BCRA is a constitutional nightmare. A

nightmare this Court should end.

II. BCRA’S LOAN-REPAYMENT LIMIT IS THE LATEST

UNCONSTITUTIONAL

PROVISION

TO

BE

CHALLENGED.

This case involves yet another BCRA provision

that is doomed to fall: a key part of the so-called

Millionaire’s Amendment. Section 304 of BCRA—the

loan-repayment limit—prohibits candidates from

using post-election contributions to repay personal

loans above $250,000. 52 U.S.C. § 30116(j). As the

court below concluded, that limit “burdens political

speech and thus implicates the protection of the First

Amendment.”

J.S.App.6a.

And

because

the

government cannot show that “the loan-repayment

limit serves an interest in preventing quid pro quo

corruption, or that the limit is sufficiently tailored to

serve this purpose, the loan-repayment limit runs

afoul of the First Amendment.” Id. This Court should

18

affirm that judgment and remove yet another

unconstitutional vestige of BCRA from the U.S. Code.

A. BCRA’s loan-repayment limit burdens

political speech.

“[T]he First Amendment ‘has its fullest and most

urgent application’ to speech uttered during a

campaign for political office.” Eu v. S.F. Cnty.

Democratic Cent. Comm., 489 U.S. 214, 223 (1989).

And the First Amendment’s protections extend to

campaign financing because to be heard, one must

spend money. See Buckley v. Valeo, 424 U.S. 1, 19–23

(1976) (per curiam).

As this Court explained in McCutcheon, in

analyzing whether a campaign-finance restriction is

unconstitutional, the first question is whether it

burdens political speech. 572 U.S. at 203–06. BCRA’s

loan-repayment limit clearly does.

The limit principally burdens the candidate

himself. A candidate for federal office may self-finance

his campaign without limit—including by making

loans from his personal funds. Candidate loans are the

primary source of campaign debt and regularly the

only way to quickly infuse money into a startup

campaign. See Anderson v. Spear, 356 F.3d 651, 673

(6th Cir. 2004) (“[A] candidate may need to speak early

in order to establish her position and garner

contributions.”).

But a candidate who wishes to make such

expenditures through personal loans must think twice

before he does so—because he might not be repaid. All

other campaign debts may be repaid by post-election

contributions, but not personal loans over $250,000.

J.S.App.14a. The candidate thus faces a dilemma:

19

forego his right to engage in unfettered spending for

his candidacy or risk losing all money he loans his

campaign above the $250,000 threshold. That clearly

burdens the candidate’s speech.

This burden on speech is similar to those imposed

by the BCRA provisions at issue in Davis and

McCutcheon. In Davis, a self-financing candidate who

“pass[ed] the $350,000 mark” triggered an

assymetrical regime that lifted limits on the

candidate’s opponent. 554 U.S. at 729. Speak too

much, and you’re penalized. In McCutcheon, the

aggregate cap limited “how many candidates or causes

a donor [could] support.” 572 U.S. at 204. Speak too

much, and you’re penalized.

The same is true here: A candidate who wishes to

loan his campaign more than $250,000 “has two

choices: abide by [that] limit [by not loaning more than

$250,000] or endure the burden that is placed on [the]

right [to loan more than $250,000] by the activation of

a scheme [that bars repayment above $250,000].”

Davis, 554 U.S. at 740. Both choices “impose[] a

substantial burden on the exercise of the First

Amendment right to use personal funds for campaign

speech.” Id. Speak too much, and you’re penalized.

And just as it was “no answer” in McCutcheon “to say

that the individual can simply contribute less money,”

572 U.S. at 204, it is no answer here to say that a selffinancing candidate can speak more quietly (by

loaning less than $250,000) or forfeit any amount over

$250,000 if he insists on speaking as loudly as he can.

Ignoring the writing on the wall, the FEC claims

the loan-repayment limit is “at most a modest burden”

on free speech. FEC Opening Br. 27. (If this line of

20

argument sounds familiar, it’s because the Court

rejected it in McCutcheon. See 572 U.S. at 204 (stating

that an aggregate limit “is not a ‘modest restraint’ at

all”).) For support, the FEC highlights the fact that

“the great majority of candidate loans are for less than

$250,000 and thus do not implicate the loanrepayment limit in the first place.” FEC Opening Br.

30. So? That the law has been successful in restricting

speech is no reason to uphold the law. Quite the

opposite.

The FEC next insists that in the years preceding

BCRA’s enactment, the majority of loans by

candidates were below $250,000. That was twenty

years ago. By one estimate, the cost to fund a winning

campaign has more than doubled in that time. See

Campaign Fin. Inst., The Cost of Winning an Election,

1986–2018 (2018). If any further proof were needed, it

isn’t the case today that loans are far below the limit;

instead, “there is a clear clustering of loans” at the

$250,000 threshold. J.S.App.14a–15a.

The FEC also concentrates on the fact that the

loan-repayment limit does not, “[o]n its face,” prevent

a candidate from spending his own money or loaning

his campaign an unlimited amount of funds. FEC

Opening Br. 27. But that hollows out the First

Amendment. See United Mine Workers of Am., Dist. 12

v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967). This

Court has never limited the First Amendment’s

protections to direct restrictions on expenditures.

Buckley itself recognized as problematic laws with a

“deterrent effect on” speech that arises “indirectly as

an unintended but inevitable result.” 424 U.S. at 65.

After all, the First Amendment does not say “Congress

shall make no law eliminating the freedom of speech.”

21

It says “Congress shall make no law … abridging the

freedom of speech.” U.S. Const. amend. I (emphasis

added). This Court has thus invalidated laws that

create a “drag” on political speech, even when the law

did not impose a direct cap or ban. Davis, 554 U.S. at

739–40; Bennett, 564 U.S. at 736. BCRA’s loanrepayment limit at the very least creates a drag on

speech.

Still, the FEC insists that the limit is simply akin

to a “time, place, and manner regulation” because it

requires that “contributions used for a given purpose

(repaying candidate loans) must be made at a given

time (before rather than after election day).” FEC

Opening Br. 28. That is incorrect. A candidate’s loan

is an expenditure that can be (and usually is) used for

speech. That speech is burdened “when a candidate is

inhibited from making a personal loan, or incurring

one, out of concern that she will be left holding the bag

on any unpaid campaign debt.” J.S.App.19a. BCRA’s

loan-repayment limit thus acts as a de facto cap on

personal loans, and burdens free speech.

B. The FEC fails to show BCRA’s loanrepayment limit serves a legitimate

interest or is appropriately tailored.

Because the loan-repayment limit burdens

political speech, the FEC must show the limit meets

heightened scrutiny. McCutcheon, 572 U.S. at 199.

The FEC has not made, and cannot make, that

showing.

This Court has repeatedly said that “[c]urbs on

protected speech … must be strictly scrutinized.” Colo.

Republican Fed. Campaign Comm., 518 U.S. at 640

(Thomas, J., concurring in the judgment and

22

dissenting in part); see also FEC v. Nat’l Conservative

Pol. Action Comm., 470 U.S. 480, 501 (1985). That

should be the standard of review regardless of whether

this Court is reviewing a law affecting expenditures or

contributions. Indeed, there is no justification to relax

that standard when it comes to contributions.

“Contributions and expenditures are simply ‘two sides

of the same First Amendment coin,’ and [this Court’s]

efforts to distinguish the two have produced mere

‘word games’ rather than any cognizable principle of

constitutional law.” McCutcheon, 572 U.S. at 231–32

(Thomas, J., concurring in the judgment) (quoting

Buckley, 424 U.S. at 241, 244 (Burger, C.J., concurring

in part and dissenting in part)). This is particularly

true here, where a candidate’s ability to spend his own

money is at issue; merely labeling a restriction a

“contribution limit” does not make it so, nor does it

change the constitutional harm. The Court should

thus use this opportunity to clarify that strict scrutiny

applies to laws affecting either type of speech.

In any event, because BCRA’s loan-repayment

limit cannot survive even so-called “closely drawn

scrutiny,” it necessarily fails strict scrutiny. See

J.S.App.20a. Closely drawn scrutiny requires the

government to demonstrate that the law serves “a

sufficiently important interest and employs means

closely drawn to avoid” abridging First Amendment

freedoms. McCutcheon, 572 U.S. at 197. BCRA’s loanrepayment limit does neither.

1. The only government interest sufficient to

support a restraint on political speech is “preventing

corruption or the appearance of corruption.” Id. at 206.

BCRA’s loan-repayment limit doesn’t serve that

interest. The FEC “has not identified a single case of

23

actual quid pro quo corruption in this context.”

J.S.App.23a. Instead, the government relies on

supposition and prediction. Even that pontification

supports only the unremarkable proposition that

candidates will favor constituents who contribute to

their campaigns. That is not corruption. As this Court

has repeatedly explained, a “generic favoritism or

influence theory … is at odds with standard First

Amendment analyses because it is unbounded and

susceptible to no limiting principle.” Citizens United,

558 U.S. at 359 (quoting McConnell, 540 U.S. at 296

(opinion of Kennedy, J.)).

The ordinary base limits confirm that the loanrepayment limit serves no anti-corruption interest. A

donor in 2018 could only give Senator Cruz $2,700. See

FEC, Contribution limits for 2017–2018 (Feb. 16,

2017), https://tinyurl.com/2p8ps4my. If the donor gave

$2,700 before the election, he couldn’t give any more

after the election to retire campaign debt. If he gave

nothing before the election, he could give $2,700 after

the election to retire campaign debt. And if he gave

$1,350 before the election, he could give only $1,350

after the election to retire campaign debt. No matter

how he sliced his contributions, he could give no more

than $2,700. And even then, the campaign could only

accept post-election contributions that did “not exceed

net debts outstanding from” the 2018 election. 11

C.F.R. § 110.1(b)(3)(i). These limitations more than

adequately address any anti-corruption interest that

the government might invoke to justify BCRA’s loanrepayment limit.

The true interests of BCRA’s loan-repayment limit

are far less legitimate. A somewhat forgiving view of

the limit is that it serves the interest of leveling the

24

playing field. As Senator Hutchison said on the floor:

“Our purpose is to level the playing field so that one

candidate who has millions, if not billions, of dollars to

spend on a campaign will not be at such a significant

advantage over another candidate who does not have

such means as to create an unlevel playing field.” 147

CONG. REC. 3970 (Mar. 20, 2001) (statement of Sen.

Hutchison). But this Court has “repeatedly rejected”

this interest as a justifification for limits on political

speech. Bennett, 564 U.S. at 749. “[T]he 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.”

Davis, 554 U.S. at 741–42.

Moreover, as Davis explained, that interest “has

ominous implications.” Id. at 742. Why stop at leveling

the financial field? Some candidates are celebrities,

some come from well-known families, and still others

dress well. “Leveling electoral opportunities means

making and implementing judgments about which

strengths should be permitted to contribute to the

outcome of an election.” Id. But our system of

government leaves those judgments to voters, not

Congress. Id.

A more realist view of BCRA’s loan-repayment

limit reveals it is about preserving incumbency. As

Senator Levin explained, “In the effort to level the

playing field in one area, we are making the playing

field less level in another area.” 147 CONG. REC. 3977

(Mar. 20, 2001) (statement of Sen. Levin). Senator

Dodd elaborated, “It isn’t exactly level, in a sense,

when we are talking about incumbents who have

treasuries of significant amounts and the power of the

office which allows us to be in the press every day.” Id.

25

at 3971 (statement of Sen. Dodd). Senator Reid

summed it up: “[The Millionaire’s Amendment] is an

incumbent advantage measure in this underlying bill.”

147 CONG. REC. S2852 (daily ed. Mar. 26, 2001)

(statement of Sen. Reid). Because preserving

incumbency is not an interest sufficient enough to

justify curtailing political speech, the loan-repayment

limit cannot stand.

2. BCRA’s loan-repayment limit is also not “closely

drawn” to protect First Amendment freedoms. In an

“area permeated by First Amendment interests,” any

restriction on speech requires “precision.” Buckley, 424

U.S. at 41. To survive, the law must employ a “means

narrowly tailored to achieve the desired objective.”

McCutcheon, 572 U.S. at 218. But BCRA’s loanrepayment limit is both over- and under-inclusive.

It is overinclusive because it penalizes losers.

There is no risk that a candidate who lost an election

will engage in quid pro quo corruption—he has no quo

to give. That dispenses with the FEC’s lamentation

that “Congress had no less restrictive alternative.”

FEC Opening Br. 40.

The limit is also underinclusive because it only

targets post-election funds. But, at least for

incumbents, pre-election contributions would pose the

same

supposed

problems

as

post-election

contributions (all of which are subject to the same base

per election limit). Yet Congress did not restrict using

those contributions to repay personal loans. This ill-fit

further confirms that the loan-repayment limit is

unconstitutional.

Finally, the loan-repayment limit gets the First

Amendment exactly backwards. The limit does not

26

apply to retiring other campaign debt, such as paying

pollsters or pizza parlors, none of which are

constitutionally protected as such. Instead, it singles

out a particular kind of debt—debt created by selffinancing—for

censure.

Because

“the

First

Amendment simply cannot tolerate” a “legislative

limit” on a candidate’s “expenditure of his own

personal funds,” Buckley, 424 U.S. at 53–54, however,

the retirement of debt from self-financing is entitled to

better, not worse, treatment than the retirement of

other debt. This further confirms the loan-repayment

limit is not “closely drawn.”

*

*

*

Past is prelude. This Court is once again tasked

with striking down an unconstitutional provision of

BCRA. The loan-repayment limit burdens political

speech with no attendant benefits, certainly no

benefits that outweigh the limit’s chill. The Court

should thus do what it has done time and again, and

invalidate an unconstitutional provision of BCRA.

III. THE COURT SHOULD STRIKE DOWN WHAT REMAINS

OF BCRA.

The Court should not stop there. BCRA is a shell

of its former self. In its present, mangled form, it no

longer functions as Congress intended. Moreover,

after this Court invalidates the loan-repayment limit,

there will be nothing left of the key amendment that

saved BCRA from legislative death. The Court should

use this case to finish the project it began years ago,

and invalidate BCRA in its entirety.

27

1. The speciously named Millionaire’s Amendment

was key to BCRA’s passage. 4 It had two operative

provisions: the asymmetrical contribution limits for

opponents of self-financed candidates and the limit on

loan repayments. Pub. L. No. 107-155, §§ 304, 319, 116

Stat. 81 (2002). This Court invalidated the

asymmetrical contributions limits in Davis, 554 U.S.

at 743–44. So all that remains of the Millionaire’s

Amendment is the limit on loan repayments at issue

in this case. And because BCRA’s passage depended

on that Amendment (and given that BCRA already

has been substantially overhauled by this Court),

there is no justification for keeping the remaining

scattershot provisions of BCRA on the books.

In general, an unconstitutional provision should

be severed, but not if “the statute created in its

absence is legislation that Congress would not have

enacted.” Seila L. LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183, 2209 (2020). This Court “cannot

rewrite a statute and give it an effect altogether

different from that sought by the measure viewed as a

whole.” Murphy v. NCAA, 138 S. Ct. 1461, 1482 (2018).

The question then is: Would Congress have enacted

4 It is specious because millionaire status has nothing to do

with the provisions. Especially when it comes to the loanrepayment limit, non-millionaires easily can be affected. And

presumably, calling it the “Two-hundred-and-fifty-thousanddollar Gang’s Amendment” did not pack the same political punch

as the “Millionaire’s Amendment.”

28

BCRA if the challenged provision were not included?

The answer is obviously “no.”5

BCRA passed the Senate 60-40. 148 CONG. REC.

S2160–61 (daily ed. Mar. 20, 2002); see also William

M. Welch & Jim Drinkard, Passage Ends Long

Struggle for McCain, Feingold, USA Today (Mar. 20,

2002). Every vote mattered. BCRA passed the House

by a wider margin, but still, the Millionaire’s

Amendment was key to the bill’s passage. See Kelly

Field, Shays-Meehan Campaign Finance Reform

Clears the House, Newswire (Feb. 13, 2002) (noting the

amendment was one of the eleventh-hour

amendments to the Shays-Meehan bill, which

ultimately became BCRA). Indeed, campaign finance

reform had failed repeatedly without the amendment.

See Campaign Finance Bill Likely Dead for the Year,

CNN (Feb. 26, 1998); Ted Barrett & Dana Bash,

Campaign Finance Battle Moves to Senate, CNN (Feb.

15, 2002) (noting previous bill failed by one vote in the

Senate).

But the Millionaire’s Amendment enticed

Senators and Representatives to vote for BCRA

because it ensured that their incumbent advantage

would be protected. See Lillian R. Bevier, Campaign

Finance Reform: Specious Arguments, Intractable

Dilemmas, 94 COLUM. L. REV. 1258, 1279 (1994)

(campaign finance “legislation carries significant

potential to achieve incumbent protection instead of

5 As appellees explain in their brief, they have standing to

challenge the loan-repayment limit; there is thus no need to

revisit the “standing-through-inseverability” argument. See

California v. Texas, 141 S. Ct. 2104, 2122 (2021) (Thomas, J.,

concurring).

29

enhancing political competition. It arouses the

uncomfortable suspicion that the corruptionprevention banner is an all-too-convenient subterfuge

for the deliberate pursuit of less savory or less

legitimate goals.”). Indeed, the Millionaire’s

Amendment ‘‘carried the redolent whiff of self-dealing

by politicians.’’ Samuel Issacharoff, Comment, On

Political Corruption, 124 HARV. L. REV. 118, 135

(2010).

In a moment of “candor,” Senator McCain (BCRA’s

loudest proponent and Senate sponsor) explained that

the amendment addressed “a concern that literally

every nonmillionaire Member of this body has, and

that is that they wake up some morning and pick up

the paper and find out that some multimillionaire is

going to run for their seat, and that person intends to

invest 3, 5, 8, 10, now up to $70 million of their own

money in order to win.” 147 CONG. REC. 3969 (Mar. 20,

2001) (statement of Sen. McCain). Without this

blatant incumbency protection, BCRA would have

never passed.

2. Moreover, as discussed, this Court has taken a

shotgun to BCRA, leaving it riddled with holes. Not

only is the entirety of the Millionaire’s Amendment

gone (or soon will be), so too are the ban on political

contributions by minors, the ban on corporate and

union funding of political ads before an election, and

the aggregate limits on contributions by individuals to

multiple candidates or party committee. And the most

significant portion of what remains of BCRA, Title I’s

substantial regulations on the political party

committees, would surely not survive this Court’s

review. See supra p. 5. After all, the self-proclaimed

level playing field of BCRA now tilts decidedly against

30

the party committees. Even the most local committee

must concern itself with BCRA’s spending restrictions,

regardless of whether the spending is coordinated with

a federal candidate.6

Even leaving that aside, however, the lopsided

version of BCRA that exists today could not, and would

not, have garnered the 60 votes necessary to pass the

Senate. See supra pp. 26–29. Instead of continuing to

6 Take for example a state-party direct mailer that expressly

advocates for the election of a federal candidate. If the state party

coordinates with the candidate, the mailer might or might not be

subject to the statutory coordinated party limits. See 52 U.S.C.

§ 30116(a)(7) (treating certain coordinated disbursements and

expenditures as contributions). If the mailer is sorted and taken

to the post office by a paid party worker, then the limits would

apply; but if the same person handling the mailer is a volunteer,

that would exempt the mailer from the limits because it would

not be a contribution or an expenditure. See 11 C.F.R. § 100.87(d);

id. § 100.147(d); see also 52 U.S.C. § 30101(8)(B)(i). Moreover,

even if the state party does not coordinate with a federal

candidate, if a federal candidate “appears on the ballot,” the party

can be subject to all sorts of BCRA’s so-called “Federal election

activity” spending restrictions. 52 U.S.C. § 30101(20)(A)(ii); see

also id. § 30125(b)(1); McConnell, 540 U.S. at 161–73. The

constitutionality of imposing such spending limits cannot turn on

such inconsequential details.

31

whittle away at BCRA, this Court should instead toss

the whole thing.7

3. Finally, BCRA’s severability clause (§ 401) is no

impediment to striking the law. Foremost, the

presence of such a clause creates only a rebuttable

presumption that guides, not controls, this Court’s

severability analysis. See Alaska Airlines, Inc. v.

Brock, 480 U.S. 678, 686 (1987); INS v. Chadha, 462

U.S. 919, 931–34 (1983) (acknowledging the presence

of a severability clause but finding it necessary to

examine the act’s legislative history before severing its

unconstitutional legislative veto provision from the

remainder of the act); United States v. Jackson, 390

U.S. 570, 585 n.27 (1968) (“[T]he ultimate

determination of severability will rarely turn on the

presence or absence of such a clause.”).

Invoking the severability clause “to salvage parts

of a comprehensive, integrated statutory scheme”

would “exalt[] a formula at the expense of the broad

objectives of Congress.’’ Buckley, 424 U.S. at 255

(opinion of Burger, C.J.). Indeed, when McConnell was

before the three-judge district court, Judge Henderson

recognized that Congress would never have enacted

such a hollowed-out statute. McConnell v. FEC, 251 F.

Supp. 2d 176, 270 n.5 (D.D.C. 2003) (Henderson, J.,

The same goes for the Court’s purported distinction

between contribution limits and independent expenditure limits.

See Buckley, 424 U.S. at 21. That distinction has spawned, in

Justice Thomas’s words, “word games,” where restrictions on

independent expenditures are simply labeled “contribution

limits.” McCutcheon, 572 U.S. at 228, 232 (opinion of Thomas, J.)

(quoting Buckley, 424 U.S. at 244 (opinion of Burger, C.J.)). Given

Buckley’s shortcomings, the Court ought not continue that sort of

mistake here, and thus ought to strike BCRA.

7

32

concurring in the judgment in part and dissenting in

part). She wrote, “[U]pon examination of the record

and despite BCRA’s severability provision, I doubt

that the Congress, upon elimination of the numerous

provisions I believe are invalid, would have been

‘satisfied’ with the contribution limit increases.” Id.

The same is true today. There is no need to keep

what remains of BCRA on the books. This Court

should wipe the slate clean.

CONCLUSION

The Court should affirm the judgment of the

District Court for the District of Columbia.

Respectfully submitted,

DONALD F. MCGAHN II

Counsel of Record

NOEL J. FRANCISCO

ROBERT LUTHER III

ANDREW J.M. BENTZ

J. BENJAMIN AGUIÑAGA

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

dmcgahn@jonesday.com

Counsel for Amicus Curiae

DECEMBER 22, 2021