Attorneys Jerad Najvar, of Najvar Law Firm in Houston, Texas, and Stephen M. Hoersting and Dan Backer, both of the law firm DB Capitol Strategies PLLC in Washington D.C., filed the request on McCutcheon's behalf.
"The aggregate limit on all contributions to candidates, unlike a limit on individual contributions to candidates, does nothing to prevent quid pro quo corruption or its appearance," said Steve Hoersting, "which the Court has held is the only government interest strong enough to squelch speech."
"The aggregate limit on contributions to candidates rests on a government interest contrary to Buckley and thoroughly rejected in Citizens United: The anti-distortion interest," said Dan Backer. "Discriminating against speakers based on their identity is fundamentally wrong, and allowing this aggregate limit on contributions to stand violates the associational and speech rights of individuals," Backer added.
McCutcheon's attorneys believe the FEC can strike this limit by looking to settled case law. The Supreme Court in Buckley v. Valeo only upheld an aggregate limit on all contributions because it included those to political parties and PACs on the grounds that doing so prevented contributors from using PACs and party committees as mere pass-throughs to send money to desired candidates, circumventing contribution limits. However, earmarking is already illegal, and Buckley's narrow rationale does not apply.
"If the government still wants to enforce the aggregate limit on candidate contributions, they have to explain how any particular candidate could possibly be corrupted because somebody gave a series of modest, otherwise permissible contributions to other federal candidates," said attorney Jerad Najvar. "The fact is that this provision is not directed at corruption, and therefore it cannot overcome Mr. McCutcheon's recognized First Amendment rights to political speech and association." Najvar explained.
The Commission is expected to answer Mr. McCutcheon's request within sixty days. The advisory opinion request is available here (http://www.fec.gov/fosers/docs.shtml?docNumber=1205092.pdf).