BENCH MEMORANDUM To: Justice Stephen Breyer From: Your law clerks, Dane Kirchoff-Foster, Sam Parker, Alex

Qin & Andrea Testin Date: December 20, 2013 Subject: McCutcheon v. Federal Election Commission Analysis and Recommendations I. Facts of the Case The case McCutcheon v. Federal Election Commission was brought forth from a suit by Shaun McCutcheon, an Alabama businessman, who has been joined by the Republican National Committee (Sullivan). McCutcheon has already made contributions equivalent to the limitations enumerated in the Federal Election Campaign Act (FECA) which include a $48,600 limit to all candidates and a $74,600 limit to PACs and political parties (Sullivan). His contention is that these limitations prohibit him from expressing his speech, thus his First Amendment rights, and that the contribution limit section of the FECA should therefore be overturned. Similarly, there is the issue of whether or not the FECA aggregate limits are a reasonable boundary so that individuals cannot use their money to generate a significant influence over the candidates they support. We believe that the democratic foundation of the United States, dating back to the origination of ideas such as the marketplace of ideas, allows for everyone to have a voice in how society should be governed. If the voices of a few drown out the voices of many, then the purpose of a democracy has been defeated. Therefore the cap on the amount of money an individual can contribute to a campaign is not only a reasonable boundary, but also a necessary boundary, for the Federal Election Commission (FEC) to enforce. There are four main questions that should be asked when taking into consideration how this case should be ruled: 1) What right is implicated by the aggregate limits and what standard of review should the Court adopt to review these provisions? If a monetary donation is seen as a contribution, the cap that is placed on this donation will be fall under First Amendment symbolic expression rights and a will implicate a lower level of scrutiny than expenditures. We contend that McCutcheons money is a contribution and that FECA contribution limit sections should therefore be upheld. 2) Does the reasoning in the Courts prior decisions logically compel striking down the aggregate limits challenged in McCutcheon? There are many precedent cases that are relevant in making this consideration, including Buckley v. Valeo, Austin v. Michigan Chamber of Commerce, McConnell v. FEC, and Citizens United v. FEC. Looking at these cases holistically, it is our opinion that there is nothing in precedent that logically compels striking down the aggregate limits. 3) What do the data on the role and impact of money in elections, particularly but not exclusively post-Citizens United, suggest about the strength of the governments interest in avoiding the appearance of corruption and whether the aggregate limits are properly tailored to serve that interest? Two things are very apparent in American politics when it comes to campaign finance. The first is that the government does not want to be seen as a corrupt entity and therefore has passed laws and created aggregate limits. The second is that the American public strongly

believes that the government is corrupt. Thus corruption or its appearance provides a basis for the government to create aggregate limits. 4) Is it possible to restrict or regulate spending in support of political candidates without encroaching upon the marketplace of ideas? Looking it at a Holmesian interpretation of the marketplace, we see that such regulations can be and have been justified as long as the idea is preserved and only the action is curtailed. Important components of the McCutcheon case are the facts, themselves. Currently the FECA allows individuals to contribute up to $2500 per election to federal candidates, up to $30,800 per calendar year to a national party committee and up to $5,000 per calendar year to any non-party political committee. Additionally the FECA imposes an aggregate limit on the total amount individuals may contribute in a two-year period. Currently, including the inflation adjustments made in 2011, the individual contribution aggregate limits are set at $46,200 to all federal candidates and $70,800 to PACs and political party committees. McCutcheon originally intended to contribute to twelve other candidates; however, the limits placed by the FECA prevented him from doing so. McCutcheon saw this as an infringement of his freedom of expression under the first amendment and filed suit in the District Court for D.C.. The Republican National Committee (RNC) also filed suit challenging this limit, because they want to get as much money as possible through individuals such as Mr. McCutcheon and the FECAs aggregate limit caps the amount of money they can receive. Both the RNC and Shaun McCutcheon [joined by a few other parties] believe that the FECA contribution limitations violate their First Amendment free speech rights. The district court determined that the FECA limits did not violate McCutcheons First Amendment rights, denying the plaintiffs motion for preliminary injunction. Similarly, the district court granted the Federal Election Committees motion to dismiss the case. However, on October 9, 2012, the Plaintiffs [McCutcheon, RNC, and others] filed a writ of certiorari with the Supreme Court and it was granted, thus resulting in the case at hand. III. What right(s) are implicated by the aggregate limits and what standard of review should the Court adopt to review these provisions? The central issue in the McCutcheon v. FEC case is inevitably the constitutionality of the FECA aggregate limits themselves; another is inevitably which standard of review is applicable to evaluating their constitutionality. Petitioner Claim: Shaun McCutcheon and the Republican National Committee argue that their First Amendment freedom of expression rights have been violated, because McCutcheons money falls into the expenditure category which [this Court has established] is deserving of strict scrutiny review (McCutcheon v. FEC). Furthermore, they maintain that the biennial aggregate limits set up by the FECA are unsupported by any cognizable interest at any level of review (McCutcheon v. FEC). Respondent Claim: The Federal Election Commissions main argument is that this Court has historically recognized an interest in preventing corruption or its appearance, and that that is exactly what they were trying to do in creating the aggregate limits. Specifically, one of the justifications for the aggregate limits provided by the government was role they play in

prohibiting circumvention in campaign finance. They argued that this particular area of corruption prevention is crucial. Without aggregate limits, large amounts of money [though still partially restrained by the base limits] could continue to flood the campaign finance pool and generate the same sort of corruption that the government sought to protect through circumvention (McCutcheon v. FEC). District Courts Decision: The district court upheld the FECA limits, however, on the ground that McCutcheons money was a contribution which invoked a right of freedom of association rather than one of expression. The governments sufficiently important interest in avoiding corruption and preventing the possibility that campaign finance regulations be circumvented, as part of the intermediate standard of court review, therefore allowed encroachment upon McCutcheons freedom of association (McCutcheon v. FEC). Our Decision and Reasoning: Upon exploring the levels of scrutiny and the distinction between contributions and expenditures under the case law, we have determined that McCutcheons money was a contribution that is protected as a freedom of expression, as opposed to a freedom of association, but with a lesser degree of protection than expenditures. Thus, with a sufficiently important government interest, this freedom of expression can be abridged and we contend that the government does have a sufficiently important interest in this case. This Courts precedent establishes contribution limits as deserving of lesser scrutiny than expenditure limits. Buckley v. Valeo was decided in 1976 and involved New York Senator James Buckley along with presidential candidate Eugene McCarthy, the New York Civil Liberties Union, and others. The petitioners claimed that the FECA and the Presidential Campaign Fund Act violated their First Amendment rights, specifically their freedom of expression rights (Buckley v. Valeo). The petitioners central argument was that nearly every method of advocating a political viewpoint in that era [and todays as well] required the spending of some amount of money. Thus, a limitation on the way in which money could be spent to further political beliefs was a direct violation of the First Amendment. Though the Court acknowledged this, it recognized the "sufficiently important interest of preventing corruption or its appearance, an interest required by the intermediate level of scrutiny applied by the Court. This allowed the contribution limitations of FECA to be upheld. The expenditures made by James Buckley and his colleagues were protected under First Amendment free speech rights (Buckley v. Valeo). The court reasoned that expenditures provide less room for corruption than contributions, because they involve less coordination and therefore less unspoken commitment on behalf of the candidate to the donor and/or organization. For this reason, though the case established that both expenditures and contributions are protected by First Amendment freedom of expression, the indirect nature of support that accompanies contributions subjects them to a lower level of court review. In practical terms, this lower level falls within intermediate scrutiny, as the district court noted in its opinion. As suggested previously, the government must present a sufficiently important government interest in order for the Court to uphold legislation at the intermediate level. The sufficiently important government interest of preventing corruption or its appearance would then be applicable to McCutcheon, as it was in Buckley. Thus from Buckley we gather that if McCutcheons potential donations [exceeding his aggregate limits] qualify as contributions, they will receive lesser protection and the FECA aggregate limits therefore should be upheld.

In order to determine whether or not the additional money that McCutcheon would like to put toward campaigns is considered a contribution, we consider the district court opinion in this case (Chemerinsky). While McCutcheon has presented the idea that his money is an expenditure which requires that the strict scrutiny standard of review be applied when considering the FECA aggregate limits, the district court embraced the opposite view (Chemerinsky). The district court stated that the difference between contributions and expenditures is the difference between giving money to an entity and spending that money directly on advocacy. Contribution limits are subject to lower scrutiny because they primarily implicate the First Amendment rights of association, not expression, and contributors remain able to vindicate their associational interest in other ways, (McCutcheon v. FEC). While we agree with the ultimate reasoning behind setting apart expenditures from contributions, we contend that the terminology used by the district court is inconsistent with that in Buckley. Rather than referring to contribution freedoms as freedoms of association, the Buckley court considered them symbolic expression. Additionally, the district court referenced Buckley in making the distinction between contribution and expenditure limits contribution limits are restrictions on money that someone gives directly to a candidate or committee, whereas expenditure limits are restrictions on what a person spends advocating an idea/opinion that the candidate or committee might support (Chemerinsky). The latter, expenditures, involve a less direct route of communication between the candidate and the donor. For this reason, the Court in Citizens United v. FEC stated, independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption, (Citizens United v. FEC). In this case the two limits in question, as previously mentioned, are the federal candidate contributions and the federal PACs/political party contributions. Together, these limits create the aggregate biennial limit that Shaun McCutcheon is arguing against. Referring to the previous definition of contribution restrictions, contribution limits include both contributions directly to candidates and directly to committees. Thus the aggregate biennial limit, though perhaps misleading in title, is composed of the two criteria of a contribution as defined in Buckley and thus deserves intermediate scrutiny. When examining the heart of direct contributions to candidates or committees, there is an unspoken yet existent sense within the candidate/committee to make decisions that the donor supports in order to repay their generosity. While at the most basic level this idea might appear harmless, there is much room for corruption to emerge in this system as donors may begin exchanging their money for favorable policy and legislation. This manifestation of corruption is exactly what the government has tried to avoid throughout campaign finance history and is part of the rationale behind recognizing corruption prevention and the appearance of corruption as a compelling state interest. This rationale has influenced this courts decision many times in the past, in cases such as McConnell v. FEC and Davis v. FEC. In McConnell, the Court found that the Bipartisan Campaign Reform Act soft money bans were constitutional because they minimally interfered with citizens speech and because they could be used to further the governments legitimate interest of avoiding corruption or its appearance (McConnell v. FEC). In Davis v. FEC, Jack Davis intended to put over $350,000 of his own money toward his campaign; because the money was going toward his campaign, it was considered expenditures. Thus due to legislation called the Millionaires Amendment; his opponent would then have a raised cap on his/her contribution limits (Davis v. FEC). Davis claimed that the expanded opportunity for his opponent violated Davis own free speech rights. The Court decided in favor of Davis, finding that the governments interest in preventing corruption through the legislation was outweighed by the burden it placed on Davis free speech.

Thus the relevant impact of this case and McConnell was the Courts historical recognition of corruption prevention as a legitimate, perhaps even sufficiently important, government interest in the proper context. Although the modern Court is concerned with preventing corruption in the campaign system, the district court has recognized that there are other ways for people to get directly involved with a candidate or a committee without writing a check. These participation methods could include anything from holding signs on polling day to conducting survey phone calls on a candidates behalf. Due largely in part to the availability of these alternative methods, it is logical to recognize the right to direct candidate contributions as a symbolic expression freedom. If McCutcheon was attempting to advocate apro-choice political opinion by contributing money to an organization that creates pro-choice billboards, he would be exercising his right to free speech. Rather than giving his money to someone who would create pro-choice legislation, he would be advocating the issue itself and any infringement upon his ability to do so would require a compelling government interest [as the Buckley Court established]. This scenario, however, is different from Shaun McCutcheons current set of circumstances. He would like to advocate opinions that he holds by electing candidates and supporting committees that will represent his opinions when making decisions, thus he is indirectly aligning himself with the people who will ultimately express the speech. With all of this in mind, we contend that McCutcheons monetary contributions, which would exceed the FECA limits, are therefore only protected under First Amendment symbolic expression. Because of this, the sufficiently important state interest of preventing corruption and its appearance can be used to justify the constitutionality of the FECA contribution limits and the infringement upon this freedom. As discussed previously, there are multiple other avenues that McCutcheon can pursue to support his candidates and committees of interest that will greatly reduce the potential for quid pro quo corruption that is implicated with giving large amounts of money to those respective parties. IV. Does the reasoning in the Courts prior decisions logically compel striking down the aggregate limits challenged in McCutcheon? Petitioner Claim: The petitioner suggests that the corruption rationale used in cases past has been sufficiently reduced with the Supreme Courts decision in Citizens United v. FEC that it is no longer true that limitations on money in politics prevent the real or imagined coercive influence of large financial contributions on candidates positions and on their actions if elected to office as decided by Buckley, and that such contributions can bring about "both the actual corruption threatened by large financial contributions and...the appearance of corruption" as stated in McConnell. The petitioner asks the Court, in short, to strike down aggregate limits based on the fact that the corruption rationale no longer is violable due to Citizens United and that existing legal provisions on contribution spending, such as base limits and protections against earmarking, necessarily limit contribution spending. After all, if independent expenditures...do not give rise to corruption or the appearance of corruption even without an abundance of regulation in place, how can well-regulated contributions? Respondent Claim: The respondent requests that the Court reaffirm the biennial aggregate limits to prevent immense aggregate wealth (Austin v. Michigan Chamber of Commerce) that could be made possible with their removal, and also recognize the potential for

corruption (as it did in Buckley, Austin, and McConnell) if these contribution limits were to be removed. District Courts Decision: The district court opinion in McCutcheon draws on an important distinction between contributions and expenditures (to which they apply the right to freedom of association). However, the district court bypasses applying the definitive ruling by the Supreme Court in Citizens United that all political speecheven speech made by organizations of people in the form of moneyis entitled to a strict scrutiny standard of judicial review. Instead, the Court maintains simply that contributions, by merit of their origins in associational rights, are afforded lesser scrutiny. The district court makes a compelling argument for why contributions should be protected under the right to freedom of association (a less-fundamentally-protected right) as opposed to speech, and even quotes Buckley: The limits primarily implicate associational rights rather than rights of expression because they impose only a marginal restriction on the contributors ability to engage in free communication. While the district court does acknowledge that freedom of expression is at play, it uses Buckley again to defend its point: the expressive value of contributions are limited because the transformation of contributions into political debate involves speech by someone other than the contributor. This is the difference between contributions and expenditures as defined by the district court: The difference between contributions and expenditures is the difference between giving money to an entity and spending that money directly on advocacy. Our Decision and Reasoning: Citizens United essentially neutered the compelling state interest to prevent corruption or the appearance of corruption, previously recognized in Buckley, Austin v. Michigan Chamber of Commerce (1990), and McConnell v. FEC (2003), making it seemingly impossible to regulate a use of money that the Court deems is political speech. In this opinion, the Court opted not to follow stare decisis and instead overturned years of precedent in the name of the First Amendment and prevention of what Justice Kennedy refers to as a chilling effect on free speech. This sweeping change may very well have ridden in on the winds of good intention - it was the Courts view that expenditures were being restricted for corporations based on their corporate identity alone: When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. Independent expenditures, even those made by corporations, do not give rise to corruption or the appearance of corruption. (Citizens United v. FEC) This defense of the First Amendment, while admirable, has led to the exact realm of situations that the Court has historically tried to prevent. This will be discussed in more detail in the next section. In terms of strict legal precedent, wherever large amounts of wealth enter the political arena, it has largely been assumed that corruption and distortion of the system will follow. In addition, when we narrow our scope to only consider contributions, we find that Buckley does indeed set a lower threshold for permissible regulation than expenditures due to differing relations to freedom of expression, as the district court affirmed, and that Citizens

United specifically avoids the subject of contributions. Therefore the only part of the ruling in Citizens United with weight in this case is its reduction of the corruption rationale - that the government has a compelling interest to prevent corruption or the appearance of corruption in political campaigns (McConnell v. FEC). With that in mind, we hold that the prior decisions in American jurisprudence on campaign finance law, when evaluated holistically, do not logically compel the striking down of the aggregate limits on campaign contributions at issue in this case. V. What do the data on the role and impact of money in elections, particularly but not exclusively post-Citizens United, suggest about the strength of the governments interest in avoiding the appearance of corruption and whether the aggregate limits are properly tailored to serve that interest? A very commonly asked question in political circles is whether or not the government is showing a strong interest in avoiding corruption post-Citizens United and whether or not the aggregate limits put in place are properly tailored to serve that interest. The government has tried, unsuccessfully [through the implementation of aggregate limits] to make the public believe that it is being run without corruption. Because the amount of campaign contributions from outside groups (super PACs and non-profit organizations) has quadrupled since the Citizens United decision, a large number of United States citizens view the campaign system as corrupt. According to a Penn Law Review1 article co-authored by Nathaniel Persily and Kelli Lammie, a government is corrupt when lawmakers start making decisions based on who gave them the most money rather than based on what their constituents believe or what their conscience says. The article discusses surveys that were used in McConnell v. FEC2 to prove that a large majority of the public believe campaign contributors exert substantial influence over office holders, (Persily). The Department of Justice hired two polling firms to conduct a survey that they had developed. The firms polled 1300 Americans and 78% of the Americans polled said that big contributions to political parties have either a great deal or some impact on the governments decision making (Persily). Although this is data from only one case, other cases involving campaign finance have proven to be very similar in the data given. This supports the point that Americans believe there is some type of corruption within the United States government and it directly stems from campaign contributions. The government has tried to suppress the notion that it is corrupt through the implementation of aggregate limits, but the question of whether or not the aggregate limits are properly tailored to serve its interest is an important one. The government clearly does not want to be seen as a corrupt entity. The government wants the American populace to believe that it is running the greatest country in the world faithfully and to the best of its ability, but with the assumption of corruption comes distrust from the American people and an overall reduction of government power. This is why the legislature put in place the aggregate limits on individual expenditures in campaigns. The implementation of these aggregate limits is what has led to our main focus, McCutcheon v. FEC. Shaun McCutcheon, a wealthy businessman from Alabama, believes that aggregate limits are an infringement on his First Amendment rights. He argues that individuals should be able to give as

much as their hearts desire toward a given candidate or political organization. Supporters of the implementation of aggregate limits say that without aggregate limits, there is far too much corruption in government. These supporters go as far as saying that the wealthy would control government if there were no aggregate limits put in place. This debate has been going on for quite a while and is very split down party lines, but the fact that the government put these contribution limits in place shows that it does have an interest in how the public perceives it. The current limits are high enough that people can still make an impact with their speech, but not to the point where they will be expecting political favors from their congressmen or women. In an article written for NYTimes.com, Bradley A. Smith, the Chairman of the Center for Competitive Politics3, stated that every justice now on the Supreme Court has recognized that limits on campaign contributions infringe upon First Amendment rights (Smith) . He goes on to say that the main issue is whether or not there is a compelling government interest in limiting campaign contributions. Many people believe there is and that is to reduce the sense of corruption within government, but he goes on to write that this argument is not backed up by facts and some of the best governed states, per Governing Magazine and the Pew Charitable Trusts, are states without campaign contribution limits (Smith). With every opinion comes a counter-opinion and in this case it was provided by Bloomberg writer, Albert R. Hunt. In an article published on December 9, 2012 Albert R. Hunt wrote that, although conventional wisdom asserts that big money did not corrupt the 2012 elections, it did in fact have a significant impact. Supporters of the Citizens United decision say that the more money put into the election campaigns, the more voter turnout on election-day, but in fact that is not what occurred. Slightly less people turned out to vote in 2012 than four years earlier. The article goes on to state that the flood of outside money into the elections weakened political parties. The article finally states that the worst development was the corrosive corruption of big money. By this, Hunt meant that billionaires who gave millions of dollars to political candidates did not have the interest of good government on their minds. Two things are very apparent in American politics when it comes to the issue of campaign finance. The first is that the government does not want to be seen as a corrupt entity. It wants nothing to do with the idea of corruption and that is why it has passed the laws concerning aggregate limits. The second is that the American public strongly believes that the government is corrupt. In surveys and polls they have stated their concerns about government corruption and about how individual expenditures and contributions affect government decision-making in negative ways. Shaun McCutcheon is challenging the implementation of aggregate limits and if he comes out victorious, it will only lead us farther into a corruption debate that does not appear to be reconcilable. VI. Does the conceptual framework of the marketplace of ideas permit any regulation of spending to support speech or political candidates? When discussing any limitations on freedom of expression, it is important to make sure that the conceptual framework of the marketplace of ideas maintains its integrity. To accomplish this, we must look at the function and purpose of the marketplace and how it has been interpreted by judge through the ages, as well as its origins. In American jurisprudence, the

origin of the phrase can be pinpointed to Justice Oliver Wendell Holmes famous dissent in Abrams v. US (1919), even if the term is not worded quite the same4: Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. (Abrams v. US, Holmes dissenting opinion) To formulate this opinion, Justice Holmes relied heavily upon the writings of John Stuart Mill, among others5. In fact, John Stuart Mill is the other great name associated with the term marketplace of ideas even though neither used that precise phrase. But it is important to note that Mill and Holmes each saw the marketplace used for different purposes - Mill advocated the marketplace largely to facilitate the discovery of truth to further the utility of society, while Holmes recognized the marketplace as important in allowing for a constantly evolving and adjusting society (Ten Cate). Obviously, because Justice Holmes is the American, and his Abrams dissent was the first real defense of free speech ever made in America , we base our perception of the marketplace more on his work than on Mills (Lewis). The marketplace of ideas was invoked infrequently until the 1970s, but when it was, it was primarily to defend the right to have an idea be heard and considered by the public. The thousands of invocations in court opinions across the country since then have solidified the marketplace of ideas in American jurisprudence and have spread it to areas involving government speech, campaign contributions, the establishment clause, true threats, election law, and commercial-speech cases among others (Fisher). When zeroing in on campaign contributions and expenditures, we often see the marketplace fill a very particular niche. It was in the case US v. OBrien in 1968 that speech was definitively detached from the conduct used to facilitate that speech. Although citizens have a right to speak out against the draft, they do not have a right to burn their draft cards in symbolic speech when those cards must be regulated and filed by the United States government as part of organizing and tracking the armed forces-- i.e., when someones conduct harms or undermines other valid regulatory activities unrelated to the content of their speech. In US v. OBrien, the OBrien test was set up to determine what government actions to restrict free speech are constitutional: there must be a compelling state interest (such as the interest to combat corruption, distortion, and improper influence in political campaigns); the regulation must be content neutral (it must apply to everyone equally and not restrict based on the content of the speech); the regulation must be narrowly tailored to serve the compelling state interest (it cannot have the effect of prohibiting constitutionally permissible speech as well as unconstitutional speech); and there must be other avenues by which the particular message may be spread. We believe that the aggregate limit restrictions at issue in this case meet these criteria.

The marketplace has often been viewed in campaign finance cases as allowing for the speech that was being spoken, but not necessarily the method by which it was spoken - i.e., cash expenditures and contributions. This interpretation of the Court was augmented slightly by Citizens United when Justice Kennedy invoked the marketplace of ideas, declaring that limiting speech based on the speakers identity (in this case, corporations) is impermissible and hurts the marketplace by creating the aforementioned chilling effect (Citizens United v. FEC). This being said, the case at hand specifically deals with aggregate limits for the individual and is considered content neutral as per the requirements of the OBrien test and so the speakers identity is not at issue (U.S. v. OBrien). Also in this case, the Courts ruling had the effect of establishing that, at least in the context of independent expenditures, limiting the amount of money behind speech was synonymous with limiting the speech, which would undermine the marketplace of ideas. It is interesting, though, that the utilization of resources not readily available to any one citizen (such utilization having every possible opportunity for corruption or distortion) should have the same protection as the speech that the resources would be amplifying. As the McCutcheon district court stated, other avenues for advocacy separate from the money arena will always exist. And as Supreme Court Justice Benjamin Cardozo once said, Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it, (Fish). Thus to answer the question quite succinctly, under the Holmesian view of the marketplace and with augmentation and evolution of society being the goal, the marketplace does in fact permit regulation of spending to support speech or political candidates. Only the Citizens United decision sheds doubt on that much-beloved assumption. It is our opinion that the marketplace calls for ideas not to be restricted or excluded based on their content and the identity of the speaker, but that methods of speech have consistently and routinely been subject to governmental scrutiny and regulation. VII. Conclusion After evaluating the four main questions regarding this case, we find that the FECA contribution limits should be upheld by the Supreme Court. First we determine that McCutcheons money [exceeding the current FECA limits] should indeed be considered a contribution by the Court. Buckley v. Valeo laid the foundation for the separation of expenditures and contributions to campaigns; our contention aligns with this precedent, as we recognize that contributions are a lesser-protected form of expression than expenditures. The Courts historical definition of contributions, as seen in Buckley and Citizens United, also aligns with our placement of McCutcheons money in the contribution category. Because of this placement, McCutcheons claim should be evaluated with intermediate scrutiny and because of the governments sufficiently important interest in preventing corruption [and its manifestation through circumvention of regulations], the FECA limits should be upheld. The Citizens United decision overturned much of the previous precedent and set a new tone for cases involving contributions and expenditures to political campaigns and candidates. The district court opinion is consistent with Buckleys determination of what a contribution is, and its lesser protection because of its close relation to freedom of association and more tenuous relation to the freedom of expression. The history of campaign finance case law has, for the most part, been a history of recognizing the corrupting, distorting, improper power of huge

amounts of wealth in political campaigns. To this end, it is worth taking a second look at the sweeping decision in Citizens United and its assertion that independent expenditures do not give rise to corruption or the appearance of corruption.(Citizens United v. FEC) With this in mind, as previously noted in the study done by the Penn Law Review, it cannot be denied that the majority of the American populace believes the government is corrupt to some extent. However, it is not disputed that the government is trying to nullify this idea through the implementation of aggregate limits. This supports the governments interest in preventing corruption and/or its appearance, affirming our recommendation that this Court rule in favor of the FEC. Lastly, Americas Holmesian view of the marketplace of ideas finds the marketplaces importance in its ability to allow society to adjust and evolve to new ideas. Therefore ideas should definitely be protected, but not necessarily the vehicles for the speech, such as money. In the end we find that it is consistent with the marketplace of ideas to allow the regulation of spending to support political candidates and campaigns. This country was founded on the fundamental principle that each person should have a voice. Ideally, no person should have undue or improper influence on the American political system in order to ensure that it most closely reflects the desires of its citizens. If the FECA biennial aggregate limits at issue are struck down, the people with the most money will have the most amount of influence. The Constitution was designed to ensure that no individual or entity would have this type of grand control over our country. The courts have, on the whole, been looking for a middle ground between respecting an individuals expression of their support through donations and ensuring the avoidance of distortion in the political campaign sphere. Thus our recommendation upholds the ideals to which our Constitution, the supreme law of the land, holds fast.

Works Cited Austin v. Michigan Chamber of Commerce. Supreme Court. 27 March. 1990. Web. Buckley v. Valeo. Supreme Court. 30 Jan. 1976. Web. Chemerinsky, Erwin. "Symposium: The Distinction between Contribution Limits and Expenditure Limits." SCOTUSblog RSS. SCOTUSblog, 12 Aug. 2013. Web. 25 Nov. 2013. Citizens United v. Federal Election Commission. Supreme Court. 21 Jan. 2010. Web. Davis v. Federal Election Commission. Supreme Court. 26 June 2008. Web. Fischer, Brendan. "Will Supreme Court Expand "Money As Speech" Ruse and Strike Donation Limits? Common Dreams." Common Dreams. PRWatch.org, 7 Oct. 2013. Web. 25 Nov. 2013. Fish, Stanley. "Does Money Talk in the Marketplace of Ideas?" New York Times 5 Apr. 2010: n. p. Print. Fisher, Louis. American Constitutional Law. New York [etc.: McGraw-Hill, 1990. Print. Hunt, Albert R. "Big Money Still Had Destructive Role in 2012 Elections."Bloomberg.com. Bloomberg, 9 Dec. 2012. Web. 16 Dec. 2013. Lewis, Anthony. Freedom for the Thought That We Hate: A Biography of the First Amendment. New York: Basic, 2007. Print. McConnell v. Federal Election Commission. Supreme Court. 10 Dec. 2003. Web. McCutcheon v. Federal Election Commission. Supreme Court. 9 Oct. 2013. Web. Persily, Nathaniel, and Kelli Lammie. "Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law."Pennlawreview.com. N.p., n.d. Web. 21 Nov. 2013. Smith, Bradley A. "No Compelling Government Interest In Limits." Editorial.Nytimes.com. N.p.,

6 Oct. 2013. Web. 21 Nov. 2013. Sullivan, Sean. "Everything You Need to Know about McCutcheon v. FEC." The Washington Post. Washington Post, 8 Oct. 2013. Web. 14 Dec. 2013. Ten Cate, Irene M., Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses (May 4, 2011). Yale Journal of Law and the Humanities, Vol. 22, p. 35, 2010; Columbia Public Law Research Paper No. 11-273. United States v. OBrien. Supreme Court. 27 May. 1968. Web.

Additional Resources "Bloomberg Law - Document -Davis v. Federal Election Commission, 554 U.S. 724, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008), Court Opinion." Bloomberg Law - Document -Davis v. Federal Election Commission, 554 U.S. 724, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008), Court Opinion. N.p., n.d. Web. 27 Oct. 2013. "Big Money Still Had Destructive Role in 2012 Elections."Bloomberg.com. Bloomberg, 09 Dec. 2012. Web. 21 Nov. 2013. Briffault, Richard. "A Changing Supreme Court Considers Major Campaign Finance Questions: Randall v. Sorrell, And Wisconsin Right To Life V. FEC." Election Law Journal 1 (2006): Academic OneFile. Web. 26 Oct. 2013. "Campaign Finance Law Quick Reference for Reporters." Federal Election Commission. Federal Election Commission, 2013. Web. 28 Oct. 2013. Crosland, E. Stewart. Failed Rescue: Why Davis v. FEC Signals the End to Effective Clean Elections. Washington & Lee University. Washington & Lee Law Review, 2009. Web. 27 Oct. 2013.

"Davis v. Federal Election Commission. DAVIS v. FEDERAL ELECTION COMMISSION. N.p., 22 Apr. 2008. Web.27 Oct. 2013. "FEC Litigation - Court Case Abstracts - B." FEC Litigation - Court Case Abstracts - B. Federal Election Commission, 2013. Web. 12 Oct. 2013 "Federal Campaign Finance Laws." Federal Campaign Finance Laws. Federal Election Commission, 2013. Web. 28 Oct. 2013. Galston, Miriam. "When Statutory Regimes Collide: Will Citizens United And Wisconsin Right To Life Make Federal Tax Regulation Of Campaign Activity Unconstitutional?." University Of Pennsylvania Journal Of Constitutional Law 4 (2011):Academic OneFile. Web. 26 Oct. 2013. "How Much Much Are Super PACs Spending? - The Wall Street Journal." How Much Much Are Super PACs Spending? - The Wall Street Journal. N.p., 2013. Web. 26 Oct. 2013. MacColl, Spencer. "Who's Who in the World of Super PACs?" - OpenSecrets Blog. N.p., 24 Aug. 2011. Web. 26 Oct. 2013. Mathias, Michael B. John Stuart Mill: On Liberty. New York: Pearson Longman, 2007. Print. "McConnell v. Federal Election Commission." McConnell v. Federal Election Commission. Chicago Kent College of Law, n.d. Web. 26 Oct. 2013. McCutcheon, Michael. "Meet Shaun McCutcheon, the Guy That's About to Ruin Your Democracy." PolicyMic. N.p., 8 Oct. 2013. Web. 12 Dec. 2013. Narayanswamy, Anupama. "Sunlight Foundation Reporting Group." Sunlight Foundation Reporting Group. Sunlight Foundation, 27 Feb. 2012. Web. 26 Oct. 2013. "Ongoing Litigation." McCutcheon. Federal Election Commission, 2013. Web. 28 Oct. 2013.

Overton, Spencer. "Judicial Modesty And The Lessons Of Mcconnell V. FEC.(Symposium: Mcconnell v. Federal Election Commission)." Election Law Journal 2 (2004): Academic OneFile. Web. 26 Oct. 2013. "Religious Leaders Urge Senate to Pass McCain-Feingold Without Amendment." Religious Leaders Urge Senate to Pass McCain-Feingold Without Amendment. N.p., 2013. Web. 28 Oct. 2013. Sherer, Michael. "Swampland." Swampland Dark Money The Rise of Outside Spending in 2012 Comments. Time, 1 Nov. 2012. Web. 26 Oct. 2013. Topa, Sascha. "Free Speech Sold To The Highest Bidder: How FEC V. Wisconsin Right To Life Undermines Campaign Finance Reform Legislation In The Guise Of Free Speech." Whittier Law Review 4 (2008): Academic OneFile. Web. 26 Oct. 2013. US News. U.S.News & World Report, n.d. Web. 21 Nov. 2013.

Notes 1) The University of Pennsylvania Law Review was founded in 1852 as the American Law Register and is currently the largest law review in the country. 2) McConnell v. FEC was a case decided by the Supreme Court in 2003 and decided that not all political speech is protected by the First Amendment. This case would end up being overruled by Citizens United v. FEC in 2010. 3) The Center for Competitive Politics (CCP) is the nations largest organization dedicated solely to protecting First Amendment rights. They have contributed crucial information into every campaign finance case that has been heard before the Supreme Court. 4) The phrase marketplace of ideas was first coined by David M Newbold in a letter to the editor of the New York Times in 1936, and was used for the first time in any federal or state appellate court opinion by Justice WIlliam O. Douglas in his concurring opinion in US v. Rumely (1953): Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the marketplace of ideas. 5) In his work named Areopagitica (1644), John Milton wrote: And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?