NOT YET SCHEDULED FOR ORAL ARGUMENT 

No. 19-5072 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

REPRESENTATIVE TED LIEU, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

No. 1:16-cv-02201-EGS 

BRIEF FOR AMICI CURIAE CHRISTOPHER T. ROBERTSON, KELLY 

BERGSTRAND, AND D. ALEXANDER WINKELMAN IN SUPPORT OF 

APPELLANTS’ PETITION FOR INITIAL HEARING EN BANC

June 27, 2019 Joshua J. Bone 

David J. Zimmer

GOODWIN PROCTER LLP

100 Northern Ave. 

Boston, MA 02210 

Tel.: (617) 570-1000 

Fax.: (617) 570-1231 

jbone@goodwinlaw.com

dzimmer@goodwinlaw.com

Counsel for Christopher T. Robertson, Kelly Bergstrand, 

and D. Alexander Winkelman

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CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES 

PURSUANT TO CIRCUIT RULE 28(a)(1) 

 All parties, intervenors, and amici appearing before the district court and in 

this Court are listed in the Certificate as to Parties, Rulings and Related Cases filed 

by Appellants. 

 References to the rulings at issue appear in the Certificate as to Parties, 

Rulings and Related Cases filed by Appellants. 

 This case was not previously before this Court or any other court, other than 

the district court. Counsel for Amici is not aware of any related cases within the 

meaning of D.C. Circuit Rule 28(a)(1)(C) currently pending in this Court or in any 

other court. 

 

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STATEMENT REGARDING CONSENT TO FILE 

AND SEPARATE BRIEFING 

All parties consent to the filing of this brief. Amici filed their notice of 

intent to participate in this case on May 21, 2019.*

Pursuant to Circuit Rule 29(d), Amici certify that a separate brief is 

necessary because Amici seek to present the results of their own study, which may 

be of significant value to the Court in deciding whether to grant Appellants’ 

petition for initial hearing en banc. No party or other amicus is capable of 

providing this unique contribution. 

 

 

*

 No counsel for a party authored this brief in whole or in part, and no person other 

than Amici and their counsel made a monetary contribution to its preparation or 

submission. See Fed. R. App. P. 29(a)(4)(E). 

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TABLE OF CONTENTS 

Page 

INTEREST OF AMICI CURIAE ............................................................................. 1 

INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2 

ARGUMENT ............................................................................................................ 3 

I. STUDY DESIGN AND RESULTS ............................................................... 3 

II. POTENTIAL IMPLICATIONS FOR CAMPAIGN FINANCE LAW. ...... 10 

CONCLUSION ....................................................................................................... 12 

 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Buckley v. Valeo, 

424 U.S. 1 (1976) .................................................................................................. 3 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) .............................................................................................. 3 

SpeechNow.org v. Federal Election Commission, 

599 F.3d 686 (D.C. Cir. 2010) .......................................................................... 2, 4 

United States v. Siegelman, 

640 F.3d 1159 (11th Cir. 2011) .......................................................................... 11 

Statutes 

18 U.S.C. § 201 .......................................................................................................... 4 

18 U.S.C. § 371 .......................................................................................................... 4 

Other Authorities 

Jessica L. Collett and Ellen Childs, “Minding The Gap: Meaning, 

Affect, and the Potential Shortcomings of Vignettes,” 40 Social 

Science Research (2011) ....................................................................................... 4 

Aaron Kesselheim, Christopher Robertson, et al., “A Randomized 

Study of How Physicians Interpret Research Funding Disclosures,” 

369 New England Journal of Medicine (Sept. 20, 2012) .................................... 5 

Michael S. Lewis-Beck, et al., “Vignette Technique,” The Sage 

Encyclopedia of Social Science Research Methods (2004) ................................ 4 

Christopher Robertson, D. Alexander Winkelman, Kelly Bergstrand, 

and Darren Modzelewski, “The Appearance and the Reality of 

Quid Pro Quo Corruption: An Empirical Investigation,” Journal of 

Legal Analysis (2018) ....................................................................................... 2, 3 

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Geert M.J. Rutte, “Measuring physiotherapists’ guideline adherence 

by means of clinical vignettes: a validation study,” 12 Journal of 

Evaluation in Clinical Practice 491 (2006) .......................................................... 4 

D. Alexander Winkelman, et al, “An Empirical Method for Harmless 

Error,” 46 Ariz. St. L.J. 1405 (2015) ................................................................... 4 

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INTEREST OF AMICI CURIAE 

Amici are scholars who have conducted empirical research about the 

appearance of quid pro quo corruption in the campaign finance context. Amici 

have no personal interest in the outcome of this case. Rather, Amici have a 

substantial professional interest in seeing that courts take account of relevant 

empirical research when evaluating the legality of campaign finance regulation. 

Christopher Robertson is Associate Dean for Research and Innovation and 

Professor of Law at the University of Arizona.1

 He is affiliated faculty with the 

Petrie Flom Center for Health Care Policy, Bioethics and Biotechnology at 

Harvard University and is a reporter for the Health Law Monitoring Committee of 

the Uniform Law Commission. 

Kelly Bergstrand is an Assistant Professor of Sociology at the University of 

Texas at Arlington and earned masters and doctoral degrees in sociology from the 

University of Arizona. 

D. Alexander Winkelman graduated from the James E. Rogers College of 

Law at the University of Arizona and contributed to the scholarly work discussed 

in this brief while a fellow there. He is a now an attorney in private practice. 

This brief is based on Amici’s prior work appearing in the Journal of Legal 

 

1

 Institutional affiliations are provided for identification purposes only. Amici 

write in their individual capacities; their views are not necessarily held by their 

employers. 

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Analysis, a peer-reviewed journal published by Oxford University Press and edited 

at Harvard Law School.2

INTRODUCTION AND SUMMARY OF ARGUMENT 

Plaintiffs-Appellants have asked the Court to reconsider its decision in 

SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), 

which gave rise to so-called Super PACs and similar independent expenditure 

organizations.3

 The Court in SpeechNow recognized that the “appearance of 

corruption” could justify campaign finance regulation under Supreme Court 

precedent. Id. at 692. But the Court went on to state that, “[i]n light of the 

[Supreme] Court’s holding as a matter of law that independent expenditures do not 

corrupt or create the appearance of quid pro quo corruption, contributions to 

groups that make only independent expenditures”—like SuperPACs—“also cannot 

corrupt or create the appearance of corruption.” Id. at 694. Amici’s empirical 

research strongly suggests otherwise. In two studies with complementary 

methodologies, Amici found that contributions to organizations that make only 

independent expenditures may in fact create the appearance of quid pro quo 

corruption. In light of this empirical research, the Court should grant initial 

2

 Christopher Robertson, D. Alexander Winkelman, Kelly Bergstrand, and Darren 

Modzelewski, “The Appearance and the Reality of Quid Pro Quo Corruption: An 

Empirical Investigation,” Journal of Legal Analysis 375-438 (2018). 

3

 The factual and regulatory background of this case is fully laid out in Plaintiffs’-

Appellants’ Petition for Initial Hearing En Banc. 

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hearing en banc and reconsider its decision in Speechnow, which rests on an 

incorrect premise. 

ARGUMENT 

I. STUDY DESIGN AND RESULTS4

The Supreme Court has long recognized in the campaign finance context 

that the government has a strong interest in avoiding the appearance of quid pro 

quo corruption because “the avoidance of the appearance of improper influence 

is . . . critical if confidence in the system of representative Government is not to be 

eroded to a disastrous extent.” Buckley v. Valeo, 424 U.S. 1, 27 (1976) (internal 

brackets and quotation marks omitted). At the heart of this case is an empirical 

question: whether contributions to independent expenditure organizations give rise 

to an appearance of quid pro quo corruption. See Nixon v. Shrink Missouri 

Government PAC, 528 U.S. 377, 392 (2000) (stating in the campaign finance 

context that “[w]e have never accepted mere conjecture as adequate to carry a First 

Amendment burden”).5

 Through two investigations, Amici have developed a 

 

4

 This summary description of Amici’s study design and findings is necessarily 

incomplete. For a complete overview of study design, results, caveats, and 

conclusions, see Robertson, et al., “The Appearance and the Reality of Quid Pro 

Quo Corruption: An Empirical Investigation.” 

5

 Treating this as an empirical question is consistent with the Supreme Court’s 

treatment of independent expenditure limits. The Supreme Court has long policed 

a distinction between expenditures and contributions. Compare Buckley, 424 U.S. 

at 27 (relying on empirical evidence of the risk of quid pro quo corruption and its 

appearance to uphold contribution limits); with id. at 45-46 (holding that 

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systematic and reliable approach to answering this question, and the answer 

appears to be yes. 

In both investigations, mock jurors were asked to determine whether various 

campaign finance fact patterns met the standard for quid pro quo corruption under 

the federal bribery statutes, see 18 U.S.C. §§ 201, 371. Investigations of this sort 

are called vignette-based experiments, meaning that respondents are asked to 

imagine themselves in a certain role (here, as grand or petit jurors) and then to 

decide what they would do in that role (here, whether to indict or convict). This 

method has become a common tool in a range of scientific and practical fields 

including sociology, psychology, business, and health sciences.6

 Vignette-based 

experiments are now published in leading scientific journals and are regularly used 

 

independent expenditures do not give rise to corruption or its appearance); see also 

SpeechNow, 599 F.3d at 694 (noting that the Supreme Court’s independent 

expenditure decisions have relied on a lack of “evidence” that independent 

expenditures “lead to, or create the appearance of, quid pro quo corruption” 

(emphasis added)). 

6 See generally Michael S. Lewis-Beck, et al., “Vignette Technique,” The Sage 

Encyclopedia of Social Science Research Methods (2004); Jessica L. Collett and 

Ellen Childs, “Minding The Gap: Meaning, Affect, and the Potential Shortcomings 

of Vignettes,” 40 Social Science Research 513 (2011) (listing these fields in 

particular); see also Geert M.J. Rutte, “Measuring physiotherapists’ guideline 

adherence by means of clinical vignettes: a validation study,” 12 Journal of 

Evaluation in Clinical Practice 491 (2006) (concluding that vignettes are of 

acceptable validity for predicting real-world behavior); D. Alexander Winkelman, 

et al., “An Empirical Method for Harmless Error,” 46 Ariz. St. L.J. 1405 (2015) 

(summarizing this and other literature). 

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to predict real-world behaviors.7

 

The first investigation—the “Grand Jury Simulation”—depicted a case 

typical to everyday politics in the United States, in which a corporation sought to 

have a deregulatory rider added to a major piece of legislation, and a U.S. 

representative sought support for his re-election. After the corporation’s CEO 

authorized a $50,000 contribution to a 501(c)(4) organization—an independent 

expenditure organization similar to a SuperPAC—that was supportive of the 

representative’s reelection, the representative expressed a willingness to study and 

promote the company’s interests, and the representative ultimately sponsored the 

deregulatory rider. Subsequently, both the corporation’s CEO and the 

representative were charged under the federal bribery statute. The simulation 

materials included a recorded charge from a federal judge, excerpts from the 

federal grand juror manual, and realistic indictments and true bill forms. An 

experienced prosecutor presented the case along with live actors portraying the 

witnesses, and study participants were allowed to question the witnesses live. 

After being exposed to this stimulus, the group of 45 mock jurors were 

broken into three grand juries of fifteen each. The study left it to the jurors to 

determine whether the indirect expenditure was a cause of the representative’s 

 

7 See e.g., Aaron Kesselheim, Christopher Robertson, et al., “A Randomized Study 

of How Physicians Interpret Research Funding Disclosures,” 369 New England 

Journal of Medicine 1119 (Sept. 20, 2012). 

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newfound interest in the deregulatory legislation, and whether, if so, this 

connection satisfied the quid pro quo elements of the federal bribery statute. 

Across all 45 grand jurors, 73% voted to indict the defendants.8

 Put differently, a 

majority of these grand jurors determined that a contribution to an independent 

expenditure organization could support federal bribery charges, even where the 

defendants had never met in person, and even where there was no direct evidence 

of an explicit agreement to make a quid pro quo exchange. 

To more systematically investigate these questions, Amici also conducted a 

much larger experiment—the “Online Experiment”—which used a national online 

sample to review participants’ responses to variations on the same basic fact 

pattern as in the Grand Jury Simulation.9

 Each survey participant was presented 

with a short stimulus based on one of five variations. The stimulus included a 

welcome and preliminary instructions by a judge, a statement of undisputed facts, 

closing arguments by both the prosecutor and the defense attorney, and jury 

instructions adapted from the pattern jury instructions for the federal crime of 

bribery. After reading this stimulus, respondents were asked to fill out a verdict 

form that posed a binary choice of guilty or not guilty on the charge of bribery for 

8

 Confidence Interval: 58%-85% 

9

 The sample consisted of 1276 jury-eligible respondents from a random online 

sample provided by Qualtrics, balanced to be representative of the United States 

census population on gender, age, and political affiliation. 

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each defendant. Respondents were then asked about their degree of confidence in 

their verdict, as well as a battery of other questions about the specific variation the 

respondent had reviewed, for example, whether the respondent had found an 

explicit or implicit agreement. 

Three factual variations are particularly relevant to this case. In the first 

relevant variation (the “PRO-WEAK condition”), the representative and CEO 

simply had background knowledge about their reciprocal interests and acted 

accordingly, without any direct or indirect contact between the parties. The 

representative introduced the rider, and the CEO made a direct contribution to the 

candidate’s campaign or leadership PAC. 

In the second relevant variation (the “PRO-LOBBY condition”), a lobbyist 

engaged the two parties and persuaded them to act in accordance with each other’s 

interests. In particular, the lobbyist suggested to both parties that he believed that 

“the Representative would push through the amendment if” the CEO gave some 

quid, and that the CEO would be “more likely to act favorably if the 

Representative proposed the hospital equipment amendment.” Importantly, these 

were the lobbyist’s predictions about the likely effects of each party’s behavior on 

the other’s behavior, not the parties’ commitments to each other. In this variation, 

the company gave a $250,000 contribution to an independent 501(c)(4) 

organization that was working to support the representative’s re-election, and the 

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representative sponsored the rider. 

Finally, in the third relevant variation (the “PRO-STRONG condition”), the 

parties met and discussed their mutual interests, and explicitly agreed that the 

company would make a direct contribution in exchange for the official action. 

This condition was intended as a benchmark for what is indisputably quid pro quo

corruption. 

In the PRO-WEAK condition, 43% of respondents were willing to convict at 

least one of the defendants, and about half of the respondents agreed (i.e., selected 

somewhat agree, agree or strongly agree) that the representative and CEO had 

corrupt intent. Six-in-ten (59%) thought that money influenced the 

representative’s decision to introduce the rider, while about half (44%/58%, 

respectively) thought that what occurred is or should be a crime. Further, even 

with no direct or indirect contact between the CEO and representative, 39% of 

respondents thought there was an agreement, and 35% believed the agreement was 

explicit. 

In the PRO-LOBBY condition, more than three quarters (77%) of respondents 

voted to convict, which was dramatically higher than in the PRO-WEAK condition. 

Strikingly, the conviction rate in the PRO-LOBBY condition was close to the 84% 

rate in the benchmark PRO-STRONG condition—indeed, there was no statistically 

significant difference (p=.48) between the likelihood that participants in each of 

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these conditions would vote to convict. Thus, participants were nearly as likely to 

convict where the parties’ relationship was through an intermediary and the 

contribution was indirect—as in the PRO-LOBBY condition—compared to where 

the relationship and contribution were both direct, as in the PRO-STRONG

condition. Additionally, in the PRO-LOBBY condition, three quarters (78%/79%, 

respectively) of respondents agreed that the representative and CEO had corrupt 

intent, 81% of respondents felt that the contribution influenced the representative, 

and 77%/83%, respectively, thought that what occurred is or should be a crime. 

Thus, a strong majority of respondents condemned the type of exchange described 

in the PRO-LOBBY condition, even though it involved a contribution to an 

independent expenditure organization and no direct communication between the 

parties.10 

The Grand Jury Simulation’s rich stimulus and extensive in-person 

deliberations contrast with the Online Experiment’s large and representative base 

of participants and varied fact patterns, creating what scientists call “convergent 

validity.” And the two experiments tell a coherent story. Both found strong 

evidence that contributions to independent expenditure organizations could support 

federal bribery charges, suggesting that such contributions can give rise to an 

10 Even with the lobbyist as a go-between, 70% believed that the representative and 

CEO had reached an agreement, with 57% viewing the agreement as explicit. 

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appearance of corruption. Potentially more significant, the Online Experiment 

found evidence that it made little difference whether the “quid” was a direct 

contribution to a campaign or a contribution to an independent expenditure 

organization like a SuperPAC—in both versions, the contribution gave rise to the 

appearance of an illegal quid pro quo arrangement. 

II. POTENTIAL IMPLICATIONS FOR CAMPAIGN FINANCE LAW.

These results call the Court’s decision in SpeechNow into substantial 

question. If, as appears to be the case, a contribution to a SuperPAC can give rise 

to the same appearance of corruption as a direct contribution to a campaign 

account, then the Court’s longstanding “appearance of corruption” rationale for 

campaign finance regulation would appear to justify regulation of contributions to 

independent expenditure organizations as well as regulation of direct contributions 

to candidates and candidate leadership PACs. Importantly, the “appearance of 

corruption” rationale does not depend on whether the Court agrees with the 

assessments of the grand and petit jurors that the facts as presented in Amici’s 

experiments constitute bribery. What matters for purposes of this rationale is 

public perception, and the protection of democratic legitimacy. See supra at 3. 

Based on the results described above, contributions to independent expenditure 

organizations may substantially threaten these interests—even if, as the Supreme 

Court has held, independent expenditures themselves do not. 

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 Moreover, these results have potentially concerning implications for the 

interaction between federal criminal law and campaign finance regulation. If 

jurors are willing to indict and convict based on the facts described above, then 

politically motivated, selective prosecutions might take the place of reasoned 

campaign finance policymaking. This concern is far from hypothetical. Former 

Alabama Governor Don Siegelman went to prison for, among other things, 

soliciting a contribution to an independent political group that was advocating for 

the establishment of a state lottery to fund an education initiative, in exchange for a 

political appointment to a state board. United States v. Siegelman, 640 F.3d 1159, 

1169-70 (11th Cir. 2011). This behavior is not unlike what many other politicians 

likely do on a regular basis: donors to SuperPACs and similar groups routinely 

expect that politicians will pay particular attention to their discrete interests. 

Rather than relying on the criminal law to weed out the most extreme quid pro 

quos—with likely inequitable results—states and the federal government should be 

permitted to regulate the indirect contributions that create the appearance of quid 

pro quo corruption in the first place. 

In sum, almost a decade after the SpeechNow decision, the influence of 

independent expenditure organizations on American politics is impossible to 

ignore. Given the overwhelming evidence—including the empirical evidence 

described in this brief—that contributions to independent expenditure 

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organizations give rise to corruption and its appearance, the Court should grant 

initial hearing en banc and reconsider SpeechNow. 

CONCLUSION 

For the foregoing reasons, as well as the reasons outlined in PlaintiffsAppellants’ petition for initial hearing en banc, Amici respectfully request that the 

Court grant initial hearing en banc in this case. 

June 27, 2019 Respectfully submitted, 

/s/ Joshua J. Bone

Joshua J. Bone 

David J. Zimmer 

GOODWIN PROCTER LLP 

100 Northern Avenue 

Boston, Massachusetts 02210 

Tel.: +1 617 570 1000 

Fax.: +1 617 523 1231 

jbone@goodwinlaw.com 

dzimmer@goodwinlaw.com 

Counsel for Christopher T. 

Robertson, Kelly Bergstrand, and D. 

Alex Winkelman 

 

 

 

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CERTIFICATE OF COMPLIANCE 

I certify that this brief complies with the length limitation set forth in Fed. R. 

App. P. 29(b)(4) because this brief contains 2,589 words, excluding those parts of 

the brief exempted by Fed. R. App. P. 32(a)(7)(f). I further certify that the brief 

complies with the typeface requirements of Fed. R. App. 32(a)(5) and the style 

requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface, 14-point Times New Roman, using Microsoft 

Word. 

Dated: June 27, 2019 /s/ Joshua J. Bone 

Joshua J. Bone 

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CERTIFICATE OF SERVICE 

I, Joshua J. Bone, hereby certify that on June 28, 2019, I caused 

the foregoing brief to be filed electronically with the United States Court of 

Appeals for the District of Columbia Circuit using the CM/ECF system. I 

certify that all counsel of record are registered as ECF Filers and they will be 

served by the CM/ECF system.

/s/ Joshua J. Bone 

Joshua J. Bone 

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