ORAL ARGUMENT NOT YET SCHEDULED 

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. 

–––––––––––– 

On Appeal from the United States District Court 

for the District of Columbia, No. 16-cv-2201 

–––––––––––– 

BRIEF OF SENATORS SHELDON WHITEHOUSE, 

RICHARD BLUMENTHAL, AND MAZIE HIRONO AS AMICI CURIAE 

IN SUPPORT OF APPELLANTS’ PETITION FOR HEARING EN BANC 

–––––––––––– 

Jennifer R. Cowan

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com

Jonathan M. DeMars

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

June 28, 2019

Counsel to Amici Curiae 

USCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 1 of 18
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CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

A. Parties and Amici

To counsel’s knowledge, the parties, intervenors, and amici appearing before 

this Court are listed in the Plaintiffs-Appellants’ Certificate as to Parties, Rulings, 

and Related Cases. Counsel understands additional amici curiae may appear in 

this matter. 

B. Rulings Under Review 

An accurate reference to the ruling at issue appears in the PlaintiffsAppellants’ Certificate as to Parties, Rulings, and Related Cases. 

C. Related Cases 

The case on review was not previously before this Court. Counsel is not 

aware of any other related cases within the meaning of Circuit Rule 28(a)(1)(C) 

currently pending in this Court. 

/s/ Jennifer R. Cowan 

Jennifer R. Cowan 

USCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 2 of 18
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STATEMENT REGARDING SEPARATE BRIEFING 

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

because amici share a unique perspective as elected members of the United States 

Senate, which may be of significant value to the Court in considering Appellants’ 

petition for an initial hearing en banc. No other amicus is capable of providing this 

unique perspective. 

USCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 3 of 18
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TABLE OF CONTENTS 

INTEREST OF AMICI CURAE ............................................................................ 1

ARGUMENT......................................................................................................... 1

I. SpeechNow has Created a New and Ever-Growing Shadow Campaign

Finance System in Which Corruption, or the Appearance Thereof, 

Is Endemic. ................................................................................................... 1

A. Unlimited Contributions Have Created an End Run Around 

Campaign Finance Restrictions ........................................................... 2 

B. The Ability to Make Unlimited Contributions Gives Special 

Interests the Power to Threaten to Make or Withhold

Contributions ...................................................................................... 5

II. The Public’s Declining Faith in Our Democracy is Evidence that 

Unlimited Contributions Give Rise to the Perception of Corruption ............. 6

III. Conclusion .................................................................................................... 9

 

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TABLE OF AUTHORITIES 

CASES

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .................. 1, 2, 3, 5, 6, 7, 8 

OTHER AUTHORITIES

75% in U.S. See Widespread Government Corruption, Gallup 

(Sept. 19, 2015) ................................................................................................. 7 

Albert W. Alschuler et al., Why Limits on Contributions to Super PACs 

Should Survive Citizens United, 86 Fordham L. Rev. 2299 (2018) ..................... 4 

Aruna Viswanatha, Rap Artist Indicted for Obama 2012 Campaign 

Donations, Wall St. J. (May 10, 2019) ............................................................... 4 

Bradley Jones, Most Americans Want to Limit Campaign Spending, 

Say Big Donors Have Greater Political Influence, 

Pew Research Ctr. (May 8, 2018) ...................................................................... 8 

Daniel P. Tokaji & Renata E.B. Strause, The New Soft Money: Outside 

Spending in Congressional Elections, The Ohio State University 

Moritz College of Law (2014) ........................................................................... 5 

Emery P. Dalesio and Gary D. Robertson, Focus on Investor’s Political 

Donations After Bribery Charge, AP News (Apr. 3, 2019) ................................ 4 

Evan Bayh, Why I’m Leaving the Senate, N.Y. Times 

(Feb. 20, 2010)................................................................................................... 6 

Glenn Thrush, Mulvaney, Watchdog Bureau’s Leader, Advises 

Bankers on Ways to Curtail Agency, N.Y. Times (Apr. 24, 2018) ...................... 7 

Joseph Carroll, Americans Increasingly View Most Members of 

Congress as Corrupt, Gallup (May 17, 2006) .................................................... 7 

Larry M. Bartels, Economic Inequality and Political Representation, 

Princeton Univ. Dep’t. of Pol. (2005) ................................................................ 7 

Michael Beckel, Behind the Price of Power: Q&A with former 

Rep. Tom Davis (R-VA), Issue One (July 25, 2017) ........................................... 6 

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Michael Beckel, Behind the Price of Power: Q&A with former 

Rep. Mike Castle (R-DE), Issue One (Aug. 15, 2017) ....................................... 6 

Michael Beckel, Super PACs and Dark Money Groups Outspent 

Candidates in a Record Number of Races in 2018, Issue One 

(Dec. 18, 2018) .................................................................................................. 3 

Michelle Ye Hee Lee, Eleven Donors Have Plowed $1 Billion into Super 

PACs Since They Were Created, Wash. Post (Oct. 26, 2018) ............................. 2 

Super PACs, OpenSecrets.org ................................................................................. 2 

Washington Post – ABC News Poll, Wash. Post (Mar. 10, 2012) ............................ 8 

 

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GLOSSARY OF ABBREVIATIONS 

DISCLOSE Act Democracy Is Strengthened by Casting Light On 

Spending in Elections Act 

PAC Political Action Committee 

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INTEREST OF AMICI CURAE1

Amici curiae are United States Senators Sheldon Whitehouse of Rhode 

Island, Richard Blumenthal of Connecticut, and Mazie Hirono of Hawaii. The 

Senators are members of the Senate Judiciary Committee and Senator Whitehouse 

is the lead sponsor of the DISCLOSE Act. Amici are democratically elected 

legislators, with firsthand experience of the disastrous consequences that unlimited 

contributions to organizations that “only engage in independent expenditure 

political spending” inflict on our democracy. Accordingly, amici respectfully 

support Appellants’ request that the Court grant an initial hearing en banc to 

reexamine its holding in SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 

ARGUMENT 

I. SpeechNow has Created a New and Ever-growing Shadow Campaign

Finance System in Which Corruption, or the Appearance Thereof, 

Is Endemic. 

In SpeechNow, this Court held, “[i]n light of the [Supreme] Court’s holding 

as a matter of law [in Citizens United v. FEC] that independent expenditures do not 

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

groups that make only independent expenditures also cannot corrupt or create the 

 

1

 All parties have consented to the filing of this brief. No counsel for a party 

authored this brief in whole or in part, and no counsel for a party, nor any person 

other than the amici curiae, or their counsel, contributed money that was intended 

to fund the preparation or submission of this brief. See Fed. R. App. P. 

29(a)(4)(E). 

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appearance of corruption.”2 From amici’s perspective as active participants in 

political campaigns and the legislative process, this Court’s conclusion as to the 

effect of contributions to groups that make only independent expenditures was and 

remains incorrect. Under SpeechNow, special interest donors have used super 

PACs and other outside organizations to evade limitations on contributions and to 

exert undue influence tending to produce corruption and the appearance thereof. 

The safeguards the Court thought would cabin the political evil of unlimited 

contributions – independence of unlimited-spending organizations from campaigns 

and public disclosure of donors – do not and cannot protect against this risk. 

A. Unlimited Contributions Have Created an End Run Around 

Campaign Finance Restrictions. 

 Super PACs are overtaking the campaign finance system, giving vastly 

disproportionate influence to a small number of big donors. Super PACs have 

received more than $4.8 billion in contributions since 2010,3

 and just eleven donors 

have contributed more than $1 billion of those funds.

4

 Outside interest groups 

 

2

SpeechNow.org, 599 F.3d at 694. Amici note that whether an activity tends to 

corrupt appears to be an issue of fact, not of law, and in our experience it is not 

factual that large contributions cannot corrupt. 

3

Super PACs, OpenSecrets.org, https://www.opensecrets.org/pacs/superpacs.php 

(last visited June 27, 2019). 

4

 Michelle Ye Hee Lee, Eleven Donors Have Plowed $1 Billion into Super 

PACs Since They Were Created, Wash. Post (Oct. 26, 2018), 

https://www.washingtonpost.com/politics/eleven-donors-plowed-1-billion-intoUSCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 9 of 18
3 

have outspent the candidates themselves in 48 congressional races since 

Citizens United.

5

 Once an aberration, this form of influence is increasingly the 

new normal.6 

 Even if super PACs operated with “independence” and within a “regime of 

effective disclosure,” as the SpeechNow Court presumed (inaccurately, we 

believe), nothing prevents donors from discussing their contributions – and what 

they want in exchange – with candidates. This is a regime of improper influence, 

quid pro quo corruption, and the appearance thereof. The risk of quid pro quo

corruption comes from the communication between the donor and the candidate, 

which can occur whether or not the PAC is “independent” of the candidate (singlecandidate super PACs worsen this obvious danger). While the potential for money 

in politics to lead to corruption is hardly a new phenomenon, the risk of corruption 

posed by the unlimited contributions to super PACs permitted by SpeechNow is 

substantially greater than the risk from limited direct campaign contributions. 

 

super-pacs-since-2010/2018/10/26/31a07510-d70a-11e8-aeb7-

ddcad4a0a54e_story.html?utm_term=.2d60b5a9f21a. 

5

 Michael Beckel, Super PACs and Dark Money Groups Outspent Candidates in a 

Record Number of Races in 2018, Issue One (Dec. 18, 2018), 

https://www.issueone.org/wp-content/uploads/2018/12/2018-outside-spending.pdf. 

6

Id. 

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 Our view is broadly shared, as illustrated by two recent Republican 

candidates for President. President Trump said when campaigning in 2016, “these 

super PACs are a disaster . . . . Very corrupt. . . . There is total control of the 

candidates . . . .”7

 Senator John McCain, 2008 Republican nominee for President, 

said in 2012, “What we have done is made a contribution limit a joke.” He added, 

“[t]here will be huge scandals, because there’s too much money washing around, 

too much of it we don’t know who’s behind it and too much corruption associated 

with that kind of money.”8

 As recent investigations in North Carolina9 and 

Washington D.C.10 show, large contributions to super PACs create large 

opportunities for quid pro quo corruption and the appearance of such corruption. 

 

7

 Albert W. Alschuler et al., Why Limits on Contributions to Super PACs Should 

Survive Citizens United, 86 Fordham L. Rev. 2299, 2338-42 (2018). 

8

Id. 

9

 Emery P. Dalesio and Gary D. Robertson, Focus on investor’s political donations 

after bribery charge, AP News (Apr. 3, 2019), https://www.apnews.com/ 

22ede8fe83044bbe9bd0f73aeefe103e (allegations against investor include donating 

$150,000 to a super PAC supporting a candidate he believed would pressure state 

regulators). 

10 Aruna Viswanatha, Rap Artist Indicted for Obama 2012 Campaign Donations, 

Wall St. J. (May 10, 2019), https://www.wsj.com/articles/former-rap-artistindicted-for-obama-2012-campaign-donations-11557522077 (rapper indicted for 

allegedly funneling a foreign contribution of over $1 million to a super PAC 

dedicated to President Obama’s 2012 re-election). 

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B. The Ability to Make Unlimited Contributions Gives 

Special Interests the Power to Threaten to Make or 

Withhold Contributions. 

By giving donors the right to make unlimited contributions, the Court also 

gave them the power to promise or threaten to make (or not make) those 

contributions. This power allows large contributors another way to manipulate and 

influence politicians outside the public eye. Legislators tasked with exercising 

independent judgment instead fear uncapped spending by adverse third parties in 

their next campaigns.11 SpeechNow failed to recognize the increased risk of 

corruption from the private threats and promises in an arena allowing unlimited 

campaign spending. Consequently, elected public officials face worsened pressure 

to answer not to their constituents, but to interests with the economic means and 

motive to subvert the democratic process. 

Over our years in the Senate, we have seen firsthand the ways in which 

allowing unlimited contributions has exponentially increased the power of super 

PACs and threatened the integrity of the legislative process. On issues ranging 

from climate change, to prescription drug pricing, to campaign finance itself, we 

 

11 See generally Daniel P. Tokaji & Renata E.B. Strause, The New Soft Money: 

Outside Spending in Congressional Elections, The Ohio State University Moritz 

College of Law (2014), https://moritzlaw.osu.edu/thenewsoftmoney/ 

wp-content/uploads/sites/57/2014/06/the-new-soft-money-WEB.pdf (“Members 

may perceive that if they do not take the legislative action preferred by [a given] 

group, then they will be targeted with retaliatory independent spending.” 

(Statement of Representative Steve LaTourette)). 

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have heard Senate colleagues lament that they cannot support legislation for fear 

that a super PAC donor adverse to the legislation will drop millions supporting a 

primary opponent. Our experiences are not unique, as the nine years since this 

Court decided SpeechNow have demonstrated the pressure that politicians face 

from unlimited spending flowing through super PACs.12

II. The Public’s Declining Faith in Our Democracy is Evidence that 

Unlimited Contributions Give Rise to the Perception of Corruption. 

Unsurprisingly, the American public witnesses the tawdry spectacle of 

money influencing politics and feels the untoward changes in our democracy. As 

elected officials, we hear these concerns from constituents all the time. Survey 

data confirm that Americans increasingly feel that our government is corrupt and 

 

12 Other members of Congress have spoken publicly about the detrimental effect of 

super PACs and unlimited outside spending. Former Senator Evan Bayh, 

explaining his decision to retire from the Senate, said, “[t]he threat of unlimited 

amounts of negative advertising from special interest groups will only make 

members more beholden to their natural constituencies and more afraid of violating 

party orthodoxies.” Evan Bayh, Why I’m Leaving the Senate, N.Y. Times (Feb. 

20, 2010), https://www.nytimes.com/2010/02/21/opinion/21bayh.html. Former 

Representative Tom Davis commented, “the system today is completely 

discombobulated. You have the ability of these super PACs to come in or some 

angry billionaire to come in and get a PAC and go after you. And that has a 

chilling effect on members of Congress and their voting habits, not wanting to 

offend these groups unless there’s some backup.” Michael Beckel, Behind the 

Price of Power: Q&A with Former Rep. Tom Davis (R-VA), Issue One (July 25, 

2017), https://www.issueone.org/behind-price-power-qa-former-rep-tom-davis-rva/; see also Michael Beckel, Behind the Price of Power: Q&A with Former Rep. 

Mike Castle (R-DE), Issue One (Aug. 15, 2017), https://www.issueone.org/behindprice-power-qa-former-rep-mike-castle-r-de/ (“What super PACs are doing today 

is probably as problematic as anything in the financing of campaigns out there.”). 

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unrepresentative of ordinary citizens.13 Citizens United and SpeechNow have 

exacerbated a disturbing trend in Americans’ views of corruption in their 

government,14 with seventy-five percent of U.S. adults perceiving corruption as 

“widespread” in the country’s government in 2015.15 Super PACs lie at the heart 

of this shift in opinion; in 2012, nearly 70% thought super PACs should be 

 

13 This impression that government is not responsive to ordinary citizens is 

accurate. For instance, Mick Mulvaney, while serving as acting Director of the 

Consumer Financial Protection Bureau, told an American Bankers Association 

conference that: “[w]e had a hierarchy in my office in Congress, [i]f you’re a 

lobbyist who never gave us money, I didn’t talk to you. If you’re a lobbyist who 

gave us money, I might talk to you.” Glenn Thrush, Mulvaney, Watchdog 

Bureau’s Leader, Advises Bankers on Ways to Curtail Agency, N.Y. Times (Apr. 

24, 2018), https://www.nytimes.com/2018/04/24/us/mulvaney-consumer-financialprotection-bureau.html. More generally, a Princeton University study found that 

“the views of constituents in the upper third of the income distribution received 

about 50% more weight [from senators] than those in the middle third (with even 

larger disparities on specific salient roll call votes), while the views of constituents 

in the bottom third of the income distribution received no weight at all in the 

voting decision of their senators.” Larry M. Bartels, Economic Inequality and 

Political Representation, Princeton Univ. Dep’t. of Pol. 4 (2005), http://citeseerx. 

ist.psu.edu/viewdoc/download;jsessionid=33B7AA4E26A0F19D5A08B7AF9069

E25F?doi=10.1.1.172.7597&rep=rep1&type=pdf. 

14 Joseph Carroll, Americans Increasingly View Most Members of Congress as 

Corrupt, Gallup (May 17, 2006), https://news.gallup.com/poll/22837/americansincreasingly-view-most-members-congress-corrupt.aspx (analyzing polling data 

from 1994 – 2006). 

15 75% in U.S. See Widespread Government Corruption, Gallup (Sept. 19, 2015), 

https://news.gallup.com/poll/185759/widespread-government-corruption.aspx. 

USCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 14 of 18
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illegal,16 and today, 72% of the public disagree with the statement that “people 

who give a lot of money to elected officials do not have more influence than 

others,” with 43% saying it describes the country “not at all well.”17

The influence of money is worse when such spending is unlimited, worse 

still when it is anonymous, and worst of all when it is anonymous to all except the 

donor and the candidate. The absence of limits on contributions to super PACs 

worsens all these dangers, giving a small set of influencers disproportionate 

influence in American politics, distorting election outcomes and causing millions 

of ordinary Americans to lose faith in the political process. This fundamental 

threat to democracy warrants initial consideration of this appeal by the Court 

sitting en banc to revisit and correct the holding in SpeechNow. 

 

 

16 Washington Post – ABC News Poll, Wash. Post (Mar. 10, 2012), 

https://www.washingtonpost.com/wp-srv/politics/polls/ 

postabcpoll_031012.html?tid=a_inl_manual. 

17 Bradley Jones, Most Americans Want to Limit Campaign Spending, Say Big 

Donors Have Greater Political Influence, Pew Research Ctr. (May 8, 2018), 

https://www.pewresearch.org/fact-tank/2018/05/08/most-americans-want-to-limitcampaign-spending-say-big-donors-have-greater-political-influence. 

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III. Conclusion. 

 For the foregoing reasons, this Court should grant appellants’ petition for 

initial hearing en banc. 

Respectfully submitted, 

/s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com 

Jonathan M. DeMars 

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

June 28, 2019 Counsel to Amici Curiae

USCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 16 of 18
CERTIFICATE OF COMPLIANCE 

In accordance with Fed. R. App. P. 29(a)(5) and 32(a)(7), the undersigned 

certifies that this brief has been prepared in a proportionally spaced typeface, 

Times New Roman, in 14-point font. According to the word processing system 

used to prepare the brief, Microsoft Word 2010, it contains 1,888 words, excluding 

the parts of the brief exempted by Fed. R. App. P. 32(f). 

 /s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com 

Jonathan M. DeMars 

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

June 28, 2019 Counsel to Amici Curiae 

USCA Case #19-5072 Document #1795042 Filed: 06/28/2019 Page 17 of 18
CERTIFICATE OF SERVICE

I hereby certify that, on June 28, 2019, a true and correct copy of the 

foregoing document was filed with the Clerk of the United States Court of Appeals 

for the District of Columbia via the Court’s CM/ECF system. Counsel for all 

parties will be served electronically by the Court’s CM/ECF system. 

 /s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com 

Jonathan M. DeMars 

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

June 28, 2019 Counsel to Amici Curiae 

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