No. 19-1398 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States 

———— 

REPRESENTATIVE TED LIEU et al., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

———— 

On Petition for a Writ of Certiorari to the 

United States Court of Appeals 

for the District of Columbia Circuit 

———— 

BRIEF AMICI CURIAE FROM 

LEGAL SCHOLARS OF CAMPAIGN FINANCE 

IN SUPPORT OF PETITIONERS 

———— 

ABBY K. WOOD

GOULD SCHOOL OF LAW

UNIVERSITY OF 

SOUTHERN CALIFORNIA* 

Los Angeles, CA 90089 

* University affiliation 

noted for identification 

purposes only. 

NICOLAS L. MARTINEZ

Counsel of Record 

BARTLIT BECK LLP 

54 W. Hubbard Street 

Chicago, IL 60654 

(312) 494-4401 

nicolas.martinez@ 

bartlitbeck.com

Counsel for Amici Curiae 

July 22, 2020 
(i) 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................ iii 

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

SUMMARY OF THE ARGUMENT .................... 1 

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

I. The D.C. Circuit in SpeechNow

Misapplied This Court’s Rulings in a 

Vast Expansion of First Amendment 

Jurisprudence That This Court Should 

Review ....................................................... 3 

A. This Court Applies Different Levels of 

Scrutiny to Expenditures and 

Contributions ....................................... 3 

B. Even Assuming That Independent 

Expenditures Cannot Corrupt, Contributions to Groups Making Independent 

Expenditures Can ................................ 6 

C. Campaigns and Outside Groups Coordinate in a Way That Can Circumvent 

Contribution Limits, Increasing the 

Risk of Quid Pro Quo Corruption ....... 13 

II. This Case Can Be Decided in Favor of 

Petitioners While Leaving Citizens 

United Undisturbed .................................. 17 

III. This Matter Is of Urgent Public 

Importance ................................................ 18 

CONCLUSION .................................................... 20 
ii 

TABLE OF CONTENTS—Continued 

APPENDIX Page 

APPENDIX A: LIST OF AMICI CURIAE ..... 1a 

APPENDIX B: SUPER PAC DATA ............... 4a 
iii 

TABLE OF AUTHORITIES 

CASES Page(s) 

Buckley v. Valeo,

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

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981) ................................. 5, 6, 14 

Caperton v. A.T. Massey Coal Co., 

556 U.S. 868 (2009) ................................... 19 

Citizens United v. FEC, 

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

Colo. Republican Fed. Campaign Comm. v. 

FEC,

518 U.S. 604 (1996) ................................... 6, 7 

FEC v. Beaumont, 

539 U.S. 146 (2003) ................................... 4 

FEC v. Colo. Republican Fed. Campaign 

Comm., 

533 U.S. 431 (2001) ................................... 14 

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) ................................... 4 

FEC v. Nat’l Conservative Political 

Action Comm., 

470 U.S. 480 (1985) ................................... 6 

McConnell v. FEC, 

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

McCutcheon v. FEC, 

572 U.S. 185 (2014) ........................... 5, 8, 12, 17 

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) ................................... 4, 6, 7 
iv 

TABLE OF AUTHORITIES—Continued 

 Page(s) 

Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150 (D.D.C. 2010), aff’d, 

561 U.S. 1040 (2010) ................................. 6, 7, 9

Republican Party of La. v. FEC, 

219 F. Supp. 3d 86 (D.D.C. 2016) aff’d, 

137 S. Ct. 2178 (2017) ............................... 6, 7, 9 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) ..................passim

CONSTITUTION 

U.S. Const. amend. I ............................ 3, 4, 15, 18 

STATUTES AND REGULATIONS 

52 U.S.C. § 30116 ......................................... 1, 20 

11 C.F.R. § 109.21 ........................................ 14 

OTHER AUTHORITIES 

Albert Alschuler et al., Why Limits on 

Contributions to Super PACs Should Survive 

Citizens United, 86 FORDHAM L. REV. 

2299 (2018) ................................................ 5 

Richard Briffault, Coordination Reconsidered, 

113 COLUM. L. REV. SIDEBAR 88 (2013) .... 16 

Richard Briffault, Super PACs, 96 MINN. L.

REV. 1644 (2012) ....................................... 15 

Rebecca L. Brown & Andrew D. Martin, 

Rhetoric and Reality: Testing the Harm of 

Campaign Spending, 90 N.Y.U. L. REV.

1066 (2015) ................................................ 20 
v 

TABLE OF AUTHORITIES—Continued 

 Page(s) 

Coordinated Communications, 71 Fed. Reg. 

33190 (June 8, 2006) ................................. 15 

Yasmin Dawood, Campaign Finance and 

American Democracy, 18 ANN. REV. POL.

SCI. 329 (2015) ........................................... 15 

Joseph Fishkin & Heather K. Gerken, The 

Party’s Over: McCutcheon, Shadow Parties, 

and the Future of the Party System, 2014 

SUPREME CT. L. REV. 175 (2014) ............... 8 

Matt Friedman, Lesniak Super PAC Sued 

by Elizabeth Board of Education 

Candidates, THE STAR-LEDGER (Oct. 29, 

2014) .......................................................... 19 

Michael D. Gilbert, Transparency and 

Corruption: A General Analysis, 6 U. OF 

CHI. LEGAL FORUM 117 (2018) .................. 11 

Michael D. Gilbert & Brian Barnes, The 

Coordination Fallacy, 43 FLA. ST. U. L.

REV. 399 (2016) ......................................... 15 

Maggie Haberman & Nicholas Confessore, 

Hillary Clinton Embraces a ‘Super PAC,’ 

Trying to Erode a Republican Edge, N.Y.

TIMES (May 6, 2015) ................................. 17 

Paul S. Herrnson, Jennifer A. Heerwig & 

Douglas M. Spencer, The Impact of 

Organizational Characteristics on Super 

PAC Financing, in THE STATE OF THE 

PARTIES (John C. Green et al. eds., 8th ed. 

2018) .......................................................... 5, 9
vi 

TABLE OF AUTHORITIES—Continued 

 Page(s) 

Michael S. Kang, The Year of the Super 

PAC, 81 GEO. WASH. L. REV. 1902 (2013) 8 

Raymond J. La Raja & Brian F. Schaffner, 

CAMPAIGN FINANCE AND POLITICAL 

POLARIZATION: WHEN PURISTS PREVAIL

(2015) ......................................................... 8 

Liset Marquez, How a Westminster Super 

PAC Connected to the City Attorney Got 

Involved in the Pomona Elections,

INLAND VALLEY DAILY BULLETIN (Oct. 30, 

2018) .......................................................... 19 

Farzad Mashhood, Super PAC Spends Tens 

of Thousands on Travis County Constable Race, AUSTIN AMERICAN-STATESMAN

(Sept. 24, 2012) ......................................... 19 

Holly Otterbein, This One Super PAC 

Raised More Than All the Mayoral 

Candidates Combined, PHILADELPHIA 

MAGAZINE (May 8, 2015) ........................... 19 

Christopher Robertson et al., The Appearance and the Reality of Quid Pro Quo 

Corruption: An Empirical Investigation, 

8 J. OF LEGAL ANALYSIS 375 (2016) .......... 12 

Hendrik M. Schatzinger & Steven E. 

Martin, GAME CHANGERS: HOW DARK 

MONEY AND SUPER PACS ARE TRANSFORMING U.S. CAMPAIGNS (Traci Crowell 

ed., 2020) ................................................... 13 
vii 

TABLE OF AUTHORITIES—Continued 

 Page(s) 

Daniel P. Tokaji & Renata E.B. Strause, 

THE NEW SOFT MONEY, OUTSIDE 

SPENDING IN CONGRESSIONAL ELECTIONS

(2014) ............................................. 11, 13, 15, 16 
INTEREST OF AMICI CURIAE

Amici are professors Abby K. Wood, of the University 

of Southern California Gould School of Law; Richard 

Briffault, of Columbia Law School; Rebecca L. Brown, 

of the University of Southern California Gould School 

of Law; Yasmin Dawood, of the University of Toronto 

Faculty of Law; Michael D. Gilbert, of the University 

of Virginia School of Law; Michael S. Kang of 

Northwestern Pritzker School of Law; Bert Neuborne, 

of NYU Law School; Bertrall Ross, of the University 

of California, Berkeley School of Law; Douglas M. 

Spencer, of the University of Connecticut School 

of Law; and Franita Tolson, of the University of 

Southern California Gould School of Law. 

Amici are legal scholars whose research and academic 

interests focus on campaign finance, election law, and 

the First Amendment.1

SUMMARY OF THE ARGUMENT 

The D.C. Circuit in SpeechNow.org v. FEC, 599 

F.3d 686 (D.C. Cir. 2010) (en banc), erred in ruling 52 

U.S.C. § 30116(a)(1)(C) unconstitutional. In SpeechNow, 

the court of appeals incorrectly combined threads from 

prior cases about independent expenditures to deregulate contributions to independent expenditure groups. 

The court wrongly concluded that because independent 

expenditures cannot corrupt, contributions to groups 

1

 Pursuant to Rule 37.2(a), counsel of record for amici curiae

provided timely notice of amici’s intention to file this brief to 

counsel of record for all parties. Counsel of record for petitioners 

and respondent have both consented to the filing of this brief. 

Pursuant to Rule 37.6, amici affirm that no counsel for a party 

authored this brief in whole or in part, and no person other than 

amici or their counsel made a monetary contribution to this 

brief’s preparation or submission. 
2 

making independent expenditures cannot either. This 

Court should grant review to rectify the D.C. Circuit’s 

error. 

Even if independent expenditures cannot corrupt, it 

does not follow that contributions to groups making 

independent expenditures also cannot corrupt. Contributions to groups making independent expenditures 

can raise the appearance of corruption, as our data 

show. Contributions to super PACs are often made 

by, or at the behest of, a candidate or campaign and 

have even been the subject of criminal prosecution. 

Contributions to super PACs can circumvent the 

contribution limits to candidate campaigns, raising 

downstream concerns about corruption or its appearance. We detail examples that raise concerns of 

circumvention, corruption, or the appearance of 

corruption in Appendix B. 

This Court, moreover, can rule in petitioners’ favor 

without disturbing Citizens United v. FEC, 558 U.S. 

310 (2010). The SpeechNow court incorrectly extended 

dicta from Citizens United about the action of making 

an independent expenditure to cover the actor – super 

PACs – making the independent expenditures. 

Citizens United compels no such conclusion. 

Super PACs and their wealthy donors have become 

outsized players in our politics. This Court has never 

weighed in on the SpeechNow decision, which unleashed 

these groups by allowing limitless contributions to 

them. We believe that this Court should do so and 

uphold contribution limits to super PACs. 
3 

ARGUMENT 

I. The D.C. Circuit in SpeechNow Misapplied 

This Court’s Rulings in a Vast Expansion 

of First Amendment Jurisprudence That 

This Court Should Review. 

This Court has long treated political expenditures as 

analogous to speech and political contributions as 

more analogous to association. It has also acknowledged that contributions pose a higher risk of corruption 

or its appearance than do expenditures, and unlimited 

contributions to groups like parties or multicandidate 

PACs risk circumvention of campaign contribution 

limits. The SpeechNow court’s ruling disregards or 

misinterprets these holdings and rationales. Its decision should not be the last word on contributions to 

groups making independent expenditures. 

A. This Court Applies Different Levels 

of Scrutiny to Expenditures and 

Contributions. 

For decades, this Court’s jurisprudence has distinguished between contributions and expenditures for 

purposes of First Amendment scrutiny of campaign 

finance regulations. This Court has ruled that due to 

their different functions, expenditures and contributions should receive different tiers of scrutiny. It has 

also ruled that expenditures and contributions present 

different risks of corruption or its appearance. The 

SpeechNow court acknowledged, but ultimately dismissed 

these distinctions. Our democracy is the poorer for it. 

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court 

recognized that expenditures are closer to “speech” 

and therefore receive the highest level of constitutional protection. Restrictions on contributions, by 

contrast, bear “more heavily on the associational right 
4 

than on freedom to speak.” Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377, 388 (2000). Restrictions on 

association are reviewed with a more lenient standard 

than restrictions on speech. As the Buckley Court 

explained, “a limitation upon the amount that any one 

person or group may contribute to a candidate or 

political committee entails only a marginal restriction 

upon the contributor’s ability to engage in free 

communication.” Buckley, 424 U.S. at 20-21. While 

contributors deserve protection, a “contribution serves 

as a general expression of support for the candidate 

and his views, but does not communicate the 

underlying basis for the support.” Id. at 21. That 

“expression rests solely on the undifferentiated, 

symbolic act of contributing.” Id. Accordingly, First 

Amendment scrutiny of contribution limits has been 

less strict than it has for expenditures. 

This Court has since “consistently held that 

restrictions on contributions require less compelling 

justification than restrictions on independent spending,” FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 

259-60 (1986), drawing “a line between expenditures 

and contributions, treating expenditure restrictions as 

direct restraints on speech, which nonetheless suffered 

little direct effect from contribution limits,” Nixon, 528 

U.S. at 386. Even a “contribution limit involving 

‘significant interference’ with associational rights, 

could survive if the Government demonstrated that 

contribution regulation was ‘closely drawn’ to match 

a ‘sufficiently important interest.’” Id. at 387-88 

(quoting Buckley, 424 U.S. at 25, 30). Subsequent 

cases have either followed this line of precedent, see, 

e.g., McConnell v. FEC, 540 U.S. 93 (2003); FEC v. 
5 

Beaumont, 539 U.S. 146 (2003), or refused to disturb 

it, Citizens United, 558 U.S. at 357.2 

The SpeechNow court departed from this Court’s 

precedent by framing contributions as “contributions 

for political speech.” 599 F.3d at 692. Previously, 

litigants before this Court had tried unsuccessfully 

to elevate the level of scrutiny contributions receive 

using such “speech by proxy” arguments. See, e.g., Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 193-97 (1981); 

see also Albert Alschuler et al., Why Limits on 

Contributions to Super PACs Should Survive Citizens 

United, 86 FORDHAM L. REV. 2299, 2320-22 (2018). 

They succeeded in SpeechNow. 

In practice, however, contributions to super PACs 

are not “speech by proxy.” A majority of all super PACs 

registered with the FEC between 2010 and 2016 

raised no money, and approximately 70% of super 

PACs spend less than $1,000. See Paul S. Herrnson, 

Jennifer A. Heerwig & Douglas M. Spencer, The 

Impact of Organizational Characteristics on Super 

PAC Financing, in 17 THE STATE OF THE PARTIES 

248, 250 (John C. Green et al. eds., 8th ed. 2018). 

Approximately 60% of contributions to super PACs 

are spent on television ads and other communications 

aimed at affecting the outcome of elections. The 

remaining dollars are either spent to fund political 

research, mobilize voters, pay for overhead, or are 

never spent. Id. at 249-50. 

2

 The plurality opinion in McCutcheon v. FEC, 572 U.S. 185, 

196-99 (2014), summarized the way Buckley distinguished between 

contributions and expenditures but declined to revisit that distinction. 
6 

B. Even Assuming That Independent 

Expenditures Cannot Corrupt, Contributions to Groups Making Independent 

Expenditures Can. 

1. In case after case, this Court has explained that 

the risk of corruption presented by contributions is 

higher than that presented by expenditures. It has 

upheld contribution limits repeatedly, from direct campaign contributions, Buckley, 424 U.S. 1; Nixon, 528 

U.S. 377, to party contributions, McConnell, 540 U.S. 

93; Republican Party of La., 219 F. Supp. 3d 86 

(D.D.C. 2016), aff’d, 137 S. Ct. 2178 (2017); Republican 

Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 157 (D.D.C. 

2010), aff’d, 561 U.S. 1040 (2010); Colo. Republican 

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

(“Colorado I”), and multicandidate PACs, Cal. Med., 

453 U.S. 182. Contribution limits serve “the important 

governmental interests in preventing the corruption 

or appearance of corruption of the political process 

that might result if such contributions were not 

restrained.” Cal. Med., 453 U.S. at 195. This Court has 

for years shown “deference to a congressional determination of the need for a prophylactic rule where the 

evil of potential corruption had long been recognized.” 

FEC v. Nat’l Conservative Political Action Comm., 470 

U.S. 480, 500 (1985). “Buckley’s holding seems to leave 

the political branches broad authority to enact laws 

regulating contributions that take the form of ‘soft 

money.’” Nixon, 528 U.S. at 404 (Breyer, J. and Ginsburg, 

J., concurring); see also McConnell, 540 U.S. at 137. 

Furthermore, this Court has clearly and unequivocally upheld contribution limits for independent 

expenditures and non-coordinated electoral activities. 

It has recognized that “soft money” when not coordinated still “creates a significant risk of actual and 
7 

apparent corruption.” McConnell, 540 U.S. at 168; 

Republican Party of La., 219 F. Supp. 3d at 91; 

Republican Nat’l Comm., 698 F. Supp. 2d at 161-62. It 

has also acknowledged the “danger of corruption [] 

from the ability of donors to give sums up to $20,000 

to a party which may be used for independent party 

expenditures for the benefit of a particular candidate.” 

Colorado I, 518 U.S. at 617 (opinion of Breyer, J.). 

Crucially, this Court has never decided that contributions cannot corrupt, even where independent 

expenditures are involved. It has instead explained 

that “limitations on independent expenditures are 

less directly related to preventing corruption” than 

contribution restrictions are. Id. at 615. 

This Court’s concern about corruption has included 

both quid pro quo bribery as well as “the broader 

threat from politicians too compliant with the wishes 

of large contributors.” Nixon, 528 U.S. at 389 (describing Buckley’s concern with the power of money “‘to 

influence governmental action’ in ways less ‘blatant 

and specific’ than bribery”). Unlimited contributions 

to super PACs raise the risk and appearance of 

corruption, no matter how narrowly defined. 

The Citizens United majority wrote that as a matter 

of law, independent expenditures do not corrupt. 558 

U.S. at 357. The SpeechNow court misread Citizens 

United as compelling its outcome, asserting “[i]n light 

of the 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 

also cannot corrupt or create the appearance of 

corruption. The Court has effectively held that there is 

no corrupting ‘quid’ for which a candidate might in 

exchange offer a corrupt ‘quo.’” SpeechNow, 599 F.3d 
8 

at 694-95 (emphasis added). It stretched this Court’s 

language in Citizens United to cover not only the 

activity of making independent expenditures, but the 

actor itself – the super PAC. The D.C. Circuit said, in 

effect, if this one activity conducted by super PACs 

cannot corrupt, another activity related to super PACs 

– contributions – cannot corrupt either. But that 

conclusion is misplaced. This Court has decided no 

such thing, “effectively” or otherwise. 

The Court’s concern about the corruption potential 

from contributions to non-campaign entities stems 

from the “close connection and alignment of interests” 

between officeholders and the groups. McConnell, 540 

U.S. at 155. The risk of corruption is tied to the 

gratitude candidates feel toward donors. The McCutcheon

plurality distinguished between direct candidate contributions and party contributions, “for which the 

candidate, like all other members of the party, feels 

grateful.” McCutcheon, 572 U.S. at 225-26. 

As political science and law professors have explained, 

the emergence of super PACs with unlimited contributions has weakened traditional political parties, 

creating so-called “Shadow Parties.” Shadow parties 

are groups that are closely linked to the parties but 

organize as super PACs in order to circumvent party 

contribution limits. They are small, exclusive, funded 

by immense wealth, and tend to contribute to the 

polarization of politics. See Raymond J. La Raja & 

Brian F. Schaffner, CAMPAIGN FINANCE AND POLITICAL 

POLARIZATION: WHEN PURISTS PREVAIL 60-61 (2015); 

Joseph Fishkin & Heather K. Gerken, The Party’s 

Over: McCutcheon, Shadow Parties, and the Future of 

the Party System, 2014 SUPREME CT. REV. 175, 186-92, 

196-97, 208-11 (2014); Michael S. Kang, The Year of 

the Super PAC, 81 GEO. WASH. L. REV. 1902, 1919-22 
9 

(2013). Rather than having to rely on support from a 

broad party, candidates can now rely on these shadow 

parties. 

The danger of quid pro quo corruption is especially 

acute when a super PAC supports a single candidate. 

Thirty-five percent of all super PACs are formed with 

this aim, and a majority of super PACs that support 

presidential candidates are single-candidate groups. 

Herrnson, Heerwig & Spencer, supra, at 250. Gratitude 

towards donors is concentrated, and concerns about 

corruption are heightened, with the shift in resources 

from parties to super PACs. 

This Court recently upheld the limit on soft money 

contributions to parties – where the gratitude for 

contributions is distributed among candidates – via 

summary affirmance. Republican Party of La., 219 

F. Supp. 3d at 96-97; Republican Nat’l Comm., 698 

F. Supp. 2d at 157. Because super PACs have closer 

connections to candidates and can accept unlimited 

contributions, they present an even higher risk of 

corruption than party soft money does. By failing to 

recognize this contribution-side risk of corruption, the 

SpeechNow court erred. 

2. Super PACs can also corrupt by enriching friends 

and family of the candidate, by facilitating circumvention of contribution limits, and by serving as escrow 

accounts for bribery and extortion. 

Only 37% of super PACs make any independent 

expenditures. Herrnson, Heerwig & Spencer, supra, at

250. Contributions that do not go to independent 

expenditures go to other activities and overhead or are 

held in reserve. Nothing prevents super PACs from 

being managed by people who are close to the 

candidates they support, who can in turn use the 
10 

contributions to enrich themselves or their candidates. 

We detail several examples that raise this possibility 

in Appendix B to this brief. For example, Rebuilding 

America, a super PAC supporting President Trump’s 

2016 campaign, was headed by one of Paul Manafort’s 

close friends, Laurance Gay. The super PAC paid Gay 

$385,000 from January to June 2017, despite being 

“mostly dormant” after the election. Unite the Country, 

the pro-Biden super PAC, is chaired by Mark Joseph 

Doyle, a former Biden aide and close family friend. 

Former Arkansas governor Mike Huckabee paid around 

$400,000 to extended family members while making 

very few independent expenditures from his super 

PAC between 2012 and 2015. One of President Trump’s 

super PACs, America First Action, has spent over 

half a million dollars hosting events at the Trump 

International Hotel. And Tyler Harber pled guilty in 

2015 to fraudulently taking “commissions” from the 

funds he had raised for a Republican super PAC in 

Virginia. Of the contributions raised by the super 

PAC, 23%, or $256,000, went to side payments to 

Harber, his wife, and his mother.3

 The point is not 

that Congress intended to protect donors from being 

scammed, but rather that money can achieve its corrupting effect without having any real speech value. 

Contribution coordination can also aid corruption. 

As examples in Appendix B show, candidates fundraise unlimited contributions for super PACs before 

declaring their candidacy or appear at fundraisers for 

their supporting super PACs. Even assuming the 

candidate is not in the room when the contribution 

“ask” is made, the candidate often knows who the 

3 See Appendix B items 1-5 for more on these events. 
11 

contributors are. This can facilitate corruption.4

Michael D. Gilbert, Transparency and Corruption: A 

General Analysis, 6 U. OF CHI. LEGAL FORUM 117, 117 

(2018). Contribution coordination may also be more 

direct than a candidate’s appearing at fundraisers. As 

one campaign operative told researchers, candidates 

dial for dollars for their super PACs, saying “[h]ey, I 

know you’re maxed out – and I can’t take any more 

money from you – but there’s this other group. I’m 

not allowed to coordinate with them, but can I have 

someone call you?” Daniel P. Tokaji & Renata E.B. 

Strause, THE NEW SOFT MONEY, OUTSIDE SPENDING IN 

CONGRESSIONAL ELECTIONS 68 (2014). At a minimum, 

these requests circumvent the contribution limits, 

violating the spirit (and depending on the circumstances, the letter) of campaign finance law. 

Would-be donors stand ready to contribute in 

exchange for favorable policy. North Carolina businessmen were recently convicted for making a $1.5 

million donation to a single-candidate super PAC to 

induce a state insurance commissioner to remove a 

deputy responsible for overseeing their company’s 

regulation. A few years prior, Senator Robert Menendez 

and donor Salomon Melgen were indicted over a 

$600,000 contribution from Melgen to Senate Majority 

PAC, earmarked to support Senator Menendez, in 

exchange for a visa for Melgen’s girlfriend and some 

helpful policies for his business. Melgen was attempting to avoid a Medicare audit, which eventually 

4 See Appendix B items 6-12 for more on these events. Items 

13-14 show that super PACs can also act as “advance staff” for 

campaign events. 
12 

revealed that he had stolen tens of millions of dollars 

from the Medicare system.5

Our purpose here is not to catalog quid pro quo

corruption that would result in a conviction in court. 

However, we note that when this Court upheld 

contribution limits for “soft money” in McConnell, it 

did so in the absence of even one example of quid pro 

quo corruption. See McCutcheon, 572 U.S. at 240-41 

(Breyer, J., dissenting). These recent examples, therefore, provide more evidence of the risk of quid pro quo

corruption in a context of unlimited contributions to 

groups making independent expenditures than the 

McConnell Court had before it in upholding contribution limits for a similar purpose. 

These impressions are evident in laboratory and 

survey research, too. Scholars have shown that mock 

grand juries and online survey respondents perceive 

large contributions to super PACs as sufficiently corrupting to indict under bribery statutes. Christopher 

Robertson et al., The Appearance and the Reality of 

Quid Pro Quo Corruption: An Empirical Investigation, 

8 J. OF LEGAL ANALYSIS 375, 380 (2016). 

Finally, rather than a quid pro quo of a contribution 

or expenditure in exchange for policy, super PAC 

involvement in campaigns sometimes looks more like 

extortion. The threat of a massive amount of outside 

spending can push an elected official into a policy 

stance. “The most significant takes the form of 

threats – mostly implicit but occasionally explicit – of 

retaliatory independent spending for legislative acts of 

which the spender disapproves. Members of Congress 

today, it seems, are quite cognizant of the threat of 

5 See Appendix B items 15-19 for more on these and similar 

events. 
13 

such spending, particularly in primary elections.” 

Tokaji & Strause, supra, at 94. Another threat may be 

of a dreaded “ad bomb” late in the campaign. Hendrik 

M. Schatzinger & Steven E. Martin, GAME CHANGERS:

HOW DARK MONEY AND SUPER PACS ARE TRANSFORMING U.S. CAMPAIGNS 123 (Traci Crowell ed., 2020). 

When super PACs hold money in reserve, they protect 

their ability to make these threats. That money also 

has no real speech value: once the threat has been 

made and the politician has agreed to conform, the 

money can go to lavish salaries or be held for future 

threats. 

In sum, unlimited super PAC contributions increase 

the risk of corruption and its appearance. 

C. Campaigns and Outside Groups Coordinate in a Way That Can Circumvent 

Contribution Limits, Increasing the 

Risk of Quid Pro Quo Corruption. 

Aside from the real risk of direct quid pro quo

corruption channeled through super PACs, contributions to super PACs may help a campaign circumvent 

contribution limits. Circumvention is problematic on 

its own, and it also carries with it a downstream risk 

of corruption. Coordination between outside groups 

and campaigns creates the circumvention problem and 

increases the risk of corruption. This is a problem that 

would not go away under stricter coordination rules 

or a more aggressive enforcement regime, because 

eliminating the main coordination “safe harbor” for 

communications in public would raise significant 

constitutional concerns. Coordination will therefore 

continue. Contribution limits to super PACs would be 

the most effective way to prevent coordination from 

becoming circumvention. 
14 

This Court has already upheld contribution limits 

where risk of circumvention is high. For example, it 

has recognized that without contribution limits on 

multicandidate PACs, candidate “contribution limitations [can] be easily evaded” simply by “channeling 

funds” through an outside group that makes independent expenditures. Cal. Med., 453 U.S. at 198 (upholding 

contribution limits to multicandidate PACs). Now, the 

Court faces the same question with super PACs, which 

cannot be kept from coordinating in public. 

This Court has also upheld limits on partycoordinated expenditures because the money was 

often raised by the very candidates that later benefited 

from the expenditures, in a process known as “tallying.” 

These unofficial earmarks circumvented contribution 

limits. FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 459-60 (2001) (“Colorado II”). 

Candidates do plenty of fundraising for super PACs, 

and with single-candidate groups, no “tallying” is 

needed. Even a small amount of coordination between 

the super PAC and campaign can circumvent campaign contribution limits. 

Coordination makes circumvention possible.6

 Groups 

making independent expenditures must avoid coordination under FEC regulations. But the FEC has 

carved out “safe harbors” for some publicly available 

information under its coordination regulations7 and 

6

 Some circumvention is fairly obvious. Consider, for example, 

how common it is for candidates’ friends and family to give large 

amounts to super PACs. See Appendix B items 20-25 for examples 

of friends and family donating large amounts to super PACs in a 

way that raises concerns about circumvention. Indeed, they are 

sometimes the sole donors to those groups. 

7

 11 C.F.R. § 109.21(d)(2) (safe harbor for the “material 

involvement” conduct standard); id. § 109.21(d)(3) (safe harbor 
15 

has consistently deadlocked on enforcement matters 

related to coordination in public.8 Deadlock aside, it is 

difficult to imagine a rule that prohibits public speech 

by campaigns or outside groups without violating the 

First Amendment. Because of these safe harbors, super 

PACs are not actually required to be totally independent from campaigns, and in fact they coordinate 

messaging and targeting regularly. This coordination 

gives rise to the threat or appearance of corruption – a 

threat with no regulatory fix. Michael D. Gilbert & 

Brian Barnes, The Coordination Fallacy, 43 FLA. ST.

U. L. REV. 399, 400-02, 418-19 (2016). 

When coordination occurs, it renders the contribution limits “functionally meaningless.” Richard Briffault, 

Super PACs, 96 MINN. L. REV. 1644, 1684 (2012); 

Yasmin Dawood, Campaign Finance and American 

Democracy, 18 ANN. REV. POL. SCI. 329, 339 (2015). As 

former U.S. Senator Kent Conrad told researchers, 

“So this whole idea well, oh, they don’t coordinate, 

therefore it’s really independent is just nonsense. If 

you look at who makes up these organizations, on all 

sides, they’re loaded with political operatives. They 

know the way these campaigns are run, modern 

campaigns. They can see for themselves what’s up on 

the air. They can see the polling, a lot of it’s public. 

Some of it’s, you know not public but pretty much the 

same thing as what’s public. So they don’t need to talk 

to anybody in the campaign in order to know what 

to do.” Tokaji & Strause, supra, at 65. Campaign 

operatives expressed a similar view: “[T]here’s always 

coordination – the media is the coordination,” and 

for the substantial discussion” conduct standard); Coordinated 

Communications, 71 Fed. Reg. 33190, 33205 (June 8, 2006). 

8 See, e.g., FEC, Matters Under Review (MUR) 6908, 7142, and 

7138. 
16 

campaigns and outside groups send “‘smoke signals’ 

. . . through press releases and the media to indicate 

their needs and strategies.” Id. The bottom line, for the 

operatives, is that “at the end of the day, it’s all just 

kind of a fiction – it’s just kind of a farce, the whole 

campaign finance non-coordination thing.” Id. We 

include additional examples in Appendix B to this 

brief.9 The “independence” of the money that flows into 

super PACs is a fiction. And if super PACs are not 

reliably independent, then the risk of corruption they 

present is even higher. 

The regulatory safe harbors are exploited every 

campaign. Here is how it works. Candidates and super 

PACs send vital information that helps their counterparts economize on resources like polling, ad targeting, 

email campaigns, and general messaging strategy. 

They do it via Twitter, press releases (“even on items 

the campaign does not expect to have written about in 

the media,” Tokaji & Strause, supra, at 66), videos 

posted to YouTube, Facebook ads with unique (and 

therefore informative) links, candidate websites with 

“red boxes” or hidden links, before the candidate 

declares, and in other contexts. Examples are legion. 

We report only a sample in Appendix B.10 As Professor 

Briffault put it, “Why do they have to meet when they 

can tweet?” Richard Briffault, Coordination 

Reconsidered, 113 COLUM. L. REV. SIDEBAR 88, 94 

(2013). 

9 See Appendix B items 26-30 for examples of former aides and 

other close associates working with Super PACs. 

10 See Appendix B items 6 and 31-39 for just a few examples of 

this public coordination. See also Issue One, Coordination Watch, 

https://www.coordinationwatch.org. Public pronouncements by 

the candidate can also “endorse” a particular super PAC. See

Appendix B items 40-41. 
17 

Assumptions in McCutcheon do not control the 

outcome here. In McCutcheon, the plurality rejected 

the notion that a “candidate today could receive a 

‘massive amount of money’ that could be traced back 

to a particular contributor uninhibited by the aggregate limits” as either “illegal under current campaign 

finance laws or divorced from reality.” 572 U.S. at 211, 

216. In the super PAC context, candidates do receive 

a massive subsidy in the form of nominally “independent” (but de facto coordinated) expenditures. The 

expenditures can be traced back to particular contributors, and those contributors are uninhibited by 

contribution limits because of SpeechNow. This is both 

legal and common, rather than “illegal” and “divorced 

from reality.” 

Donors know coordination allows circumvention of 

contribution limits, and they are waiting on this Court 

to act. One donor to Priorities USA, which supported 

Hillary Clinton’s 2016 candidacy, said “I think everyone is resigned to the reality that every campaign of 

sufficient magnitude can and will have its own super 

PAC (or more than one) to get around campaign 

contribution limits . . . And they will just operate as an 

extension of the campaign itself, at least until the 

Supreme Court or Congress or F.E.C. says no.” Maggie 

Haberman & Nicholas Confessore, Hillary Clinton 

Embraces a ‘Super PAC,’ Trying to Erode a Republican 

Edge, N.Y. TIMES (May 6, 2015). 

II. This Case Can Be Decided in Favor of 

Petitioners While Leaving Citizens United

Undisturbed. 

Citizens United, on which the SpeechNow court so 

heavily relies, concerns a statutory ban (not a limit) on 

a particular type of spender from making independent 

expenditures. Limits on independent expenditures 
18 

were ruled unconstitutional three decades earlier. 

Citizens United allowed corporations to make independent expenditures directly from their treasuries.

The case has nothing to do with contributions to independent-expenditure-only groups (like super PACs). 

This Court can continue to affirm that independent 

expenditures by their nature cannot corrupt (despite 

the circumvention-related possibilities raised above) 

while also continuing to interpret the First Amendment to allow the government to limit contributions to 

super PACs. The SpeechNow court created a strange 

pocket of campaign finance where all big money now 

flows. The First Amendment does not compel that outcome, nor does this Court’s opinion in Citizens United. 

III. This Matter Is of Urgent Public 

Importance. 

The SpeechNow decision has transformed campaign 

finance in this country. Given the amount of coordination that occurs, the decision to lift the lid on super 

PAC contributions has increased the risk of quid pro 

quo corruption and its appearance. 

In 2010, super PAC receipts represented less than 

4% of the total contributions given directly to candidates. By 2018, super PAC receipts comprised more 

than half (57%) the amount raised by federal candidates. Overall, between 2010 and 2018 super PACs 

raised $4.9 billion from approximately 250,000 donors. 

The vast majority of donors (96%) are individuals. The 

top 1% of these individual donors contributed 88% of 

all super PAC funds with 204 donors contributing at 

least $1 million, raising both the risk of corruption and 

the likelihood that donors are using super PACs to 

circumvent campaign finance limits. 
19 

Super PACs have also emerged at the state and local 

level, where elections are less expensive and the groups 

can have more impact. Super PACs have flooded races 

with money at all levels of government. Examples 

abound, from large independent expenditures for seats 

in state capitols to the three-million-dollar super PAC 

contribution at issue in the state judicial election in 

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). 

Massive super PAC expenditures are regularly part of 

elections in big cities like Philadelphia and in smaller 

ones like Pomona, California.11 Super PAC spending 

even outstrips candidate spending in local down-ballot 

races, having dominated elections from school board to 

constable.12

The D.C. Circuit’s decision in SpeechNow permitting 

unlimited super PAC contributions has facilitated 

massive super PAC expenditures at every level of 

government. These expenditures harm the public’s 

faith in our democracy. Research shows that voters 

experience a decrease in their faith in democracy when 

11 Holly Otterbein, This One Super PAC Raised More Than All 

the Mayoral Candidates Combined, PHILADELPHIA MAGAZINE

(May 8, 2015), https://www.phillymag.com/citified/2015/05/08/

super-pac-philadelphia-mayoral-race/; Liset Marquez, How a 

Westminster Super PAC Connected to the City Attorney Got 

Involved in the Pomona Elections, INLAND VALLEY DAILY 

BULLETIN (Oct. 30, 2018), https://www.dailybulletin.com/2018/10/

30/how-a-westminster-super-political-action-committee-got-invol

ved-in-the-pomona-city-council-races/. 

12 Matt Friedman, Lesniak Super PAC Sued by Elizabeth 

Board of Education Candidates, THE STAR-LEDGER (Oct. 29, 2014), 

https://www.nj.com/politics/2014/10/lesniak_super_pac_sued_by_eliz

abeth_board_of_education_candidates.html; Farzad Mashhood, 

Super PAC Spends Tens of Thousands on Travis County 

Constable Race, AUSTIN AMERICAN-STATESMAN (Sept. 24, 2012), 

https://www.statesman.com/article/20120924/NEWS/309248543. 
20 

they view information about independent expenditures from outside groups, and the loss of faith is 

highest where expenditures are coordinated with the 

campaign, as they so often are in the super PAC 

context. Rebecca L. Brown & Andrew D. Martin, 

Rhetoric and Reality: Testing the Harm of Campaign 

Spending, 90 N.Y.U. L. REV. 1066, 1085-89 (2015). 

CONCLUSION 

We have described at least three reasons this Court 

should grant the petition for a writ of certiorari and 

uphold Section 30116(a)(1)(C). First, massive contributions to super PACs create the risk and appearance 

of corruption. Second, the unavoidable regulatory safe 

harbor for communication in public has facilitated 

fundraising and expenditure coordination between 

campaigns and super PACs, making circumvention of 

contribution limits inevitable. Finally, the circumvention itself leads to downstream risks of corruption. 

Respectfully submitted, 

ABBY K. WOOD

GOULD SCHOOL OF LAW

UNIVERSITY OF 

SOUTHERN CALIFORNIA* 

Los Angeles, CA 90089 

* University affiliation 

noted for identification 

purposes only. 

NICOLAS L. MARTINEZ

Counsel of Record 

BARTLIT BECK LLP 

54 W. Hubbard Street 

Chicago, IL 60654 

(312) 494-4401 

nicolas.martinez@ 

bartlitbeck.com

Counsel for Amici Curiae 

July 22, 2020
APPENDIX 
1a 

APPENDIX A 

LIST OF AMICI CURIAE

The amici listed below are distinguished campaign 

finance and election law professors and scholars. 

University affiliations are listed only for purposes of 

identification. Listed professors are acting only in 

their individual capacities and do not purport to 

represent the views of their universities. 

 Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law 

School. During his tenure at Columbia, he has 

served as a member of, or consultant to, an 

array of New York state and city commissions, 

including the New York State Moreland Act 

Commission to Investigate Public Corruption. 

He served as chair of the New York City 

Conflicts of Interest Board from 2014 to 2020. 

He is also the reporter for the American Law 

Institute’s Project on Principles of Government 

Ethics. 

 Rebecca L. Brown is the Rader Family 

Trustee Chair in Law at the University of 

Southern California Gould School of Law. She 

is a constitutional law scholar who has written 

on campaign finance and the First Amendment. 

 Yasmin Dawood is Associate Professor of Law 

and Political Science, and Canada Research 

Chair in Democracy, Constitutionalism, and 

Electoral Law, at the University of Toronto. Her 

research focuses on comparative election law, 

and she has published extensively on U.S. 

campaign finance law. 
2a 

 Michael D. Gilbert is the Martha Lubin Karsh 

and Bruce A. Karsh Bicentennial Professor of 

Law at the University of Virginia. He served as 

a law clerk to the Hon. William A. Fletcher on 

the Ninth Circuit Court of Appeals. In addition 

to researching and teaching campaign finance, 

he co-directs UVA’s Corruption Lab for Ethics, 

Accountability, and the Rule of Law. 

 Michael S. Kang is the William & Virginia 

Karnes Research Professor at Northwestern 

Pritzker School of Law. 

 Burt Neuborne is the Norman Dorsen 

Professor of Civil Liberties at NYU Law School, 

and he was the founding Legal Director of the 

Brennan Center for Justice at NYU Law School 

from 1995 to 2008.

 Bertrall Ross is the Chancellor’s Professor of 

Law at the University of California, Berkeley 

School of Law.

 Douglas M. Spencer is Professor of Law and 

Public Policy at the University of Connecticut 

and Distinguished Faculty Fellow at the Byron 

R. White Center for the Study of American 

Constitutional Law at the University of 

Colorado. In addition to his research, teaching, 

and expert testimony on campaign finance, he 

worked as Treasurer for a Connecticut statewide 

campaign during the 2018 election cycle. 

 Franita Tolson is Vice Dean for Faculty and 

Academic Affairs, and Professor of Law, at the 

University of Southern California Gould School 

of Law.
3a 

 Abby K. Wood is Associate Professor of Law, 

Political Science, and Public Policy at the 

University of Southern California Gould School 

of Law. She served as a law clerk to the Hon. 

John T. Noonan, Jr. on the Ninth Circuit Court 

of Appeals. In addition to her research and 

teaching about campaign finance, she has served 

on the Bipartisan Campaign Finance Task 

Force and the California Fair Political Practices 

Commission’s Digital Transparency Task Force. 
4a 

APPENDIX B 

Recent Super PAC Activity Related to Concerns 

Raised in This Brief 

These 41 examples are merely a sample of the issues 

we have observed. They are not intended to be 

exhaustive. 

Examples Primarily Raising the Risk That 

Super PACs Enrich the Candidate or the 

Candidate’s Friends and Family 

1. 2016 Presidential Campaign. A super PAC 

backing a presidential candidate was headed by the 

campaign manager’s close friend, who was paid 

$385,000 in the first six months of 2017 despite the 

super PAC being “mostly dormant” after the election. 

John McCormick & Bill Allison, Paul Manafort’s 

Friend Is Still Making a Ton of Money on a Mostly 

Dormant Trump Super PAC, TIME (Dec. 11, 2017), 

https://time.com/5058563/laurance-gay-paulmanafort-trump-super-pac/. 

2. 2020 Presidential Campaign. Presidential 

candidate-backed super PAC was formed and run by 

the candidate’s former campaign aides. Arlette Saenz, 

Ex-Biden aides lead newly launched super PAC, CNN 

(Oct. 30, 2019), https://www.cnn.com/2019/10/30/pol

itics/joe-biden-super-pac-unite-thecountry/index.html. 

3. 2012-2016 Campaigns. Former governor paid 

around $400,000 to extended family members while 

making very few independent expenditures from his 

super PAC, which was ostensibly set up to support 

candidates from the former governor’s party. Max 

Brantley, Mike Huckabee pays family $400,000 

from his PAC, Arkansas Times (Jan. 20, 2015), 
5a 

https://arktimes.com/arkansas-blog/2015/01/20/mike-hu

ckabee-pays-family-400000-from-his-pac. 

4. 2020 Presidential Campaign. A super PAC event, 

a dinner party held a hotel owned by a presidential 

candidate, was attended by two mega donors. These 

two donors discussed policy with the candidate at the 

hotel and then donated $325,000 to the super PAC 

after the event. Peter Stone, How Trump’s business 

empire is cashing in on the 2020 campaign, THE 

GUARDIAN (Mar. 9, 2020), https://www.theguardian. 

com/us-news/2020/mar/09/how-trumps-business-empi

re-is-cashing-in-on-the-2020-campaign. 

5. 2012 Campaigns for U.S. House of Representatives. Former campaign manager pled guilty to 

coordinating PAC expenditures to a congressional 

campaign committee and was sentenced to 24 months 

in prison. Of the contributions raised by the super 

PAC, 23%, or $256,000, went to side payments to the 

manager and his family members. Press Release, U.S. 

Dep’t of Just., Off. of Pub. Aff., Campaign Manager 

Pleads Guilty to Coordinated Campaign Contributions 

and False Statements (Feb. 12, 2015), https://www. 

justice.gov/opa/pr/campaign-manager-pleads-guilty-co

ordinated-campaign-contributions-and-false-statements; 

Matt Zapotosky & Matea Gold, Republican operative 

sentenced to 2 years in landmark election case, THE

WASHINGTON POST (June 12, 2015), https://www.wash

ingtonpost.com/local/crime/feds-want-nearly-4-year-sen

tence-for-republican-operative-convicted-of-illegal-coo

rdination/2015/06/11/7ecbdc72-0ed0-11e5-9726-49d6f

a26a8c6_story.html. 
6a 

Examples Primarily Raising the Risk of 

Corruption Through Candidate-Raised Contributions to Super PACs 

6. 2016 Presidential Campaign. Politician went on 

cross-country fundraising tours to solicit contributions 

to a super PAC formed by his family in the weeks 

before he formally announced his presidential candidacy. Alex Isenstadt, Jeb Bush’s $100M May, POLITICO

(May 8, 2015), https://www.politico.com/story/2015/05/

jeb-bush-right-to-rise-super-pac-campaign-117753. 

7. 2016 Presidential Campaign. Presidential candidate appeared at fundraisers for a super PAC and 

associated groups. Theodore Schleifer, Cruz super 

PAC claim: More than $37 million raised, CNN (June 

3, 2015), https://www.cnn.com/2015/06/03/politics/tedcruz-super-pac-identities/. 

8. 2018 Campaign for U.S. House of Representatives (multiple seats). The then-House Speaker met 

with a mega donor, the head of a super PAC in Las 

Vegas, wherein the candidate laid out his case for the 

donation and then left the room while the donor wrote 

a $30 million check to the super PAC. Jake Sherman 

& Alex Isenstadt, Sheldon Adelson kicks in $30M to 

stop Democratic House takeover, POLITICO (May 10, 

2018), https://www.politico.com/story/2018/05/10/adel

son-republicans-midterms-579436. 

9. 2012 Presidential Campaign. A presidential 

candidate spoke at dinner parties organized by a super 

PAC for donors and potential donors. Pete H. Stone, 

Democrats and Republicans alike are exploiting new 

fundraising loophole, THE CENTER FOR PUBLIC 

INTEGRITY (May 19, 2014), https://publicintegrity.org/

2011/07/27/5409/democrats-and-republicans-alike-areexploiting-new-fundraising-loophole. 
7a 

10. 2012 Presidential Campaign. A presidential 

candidate attended an exclusive “thank-you dinner” 

for donors wherein a super PAC backing the candidate 

secured $1 million in donations after the candidate left 

the room. Michael Scherer, Book: Obama Attended 

Super PAC Fundraiser, Violating 2012 Campaign 

Pledge, TIME (Nov. 4, 2013), https://swampland.time. 

com/2013/11/04/book-obama-attended-super-pac-fundr

aiser-violating-2012-campaign-pledge/. 

11. 2018 U.S. Senate Campaign. A super PAC organized and fundraised campaign events for a senatorial 

candidate that the candidate allegedly attended. 

Philip Bump, Coming soon: A campaign run entirely 

by super PACs, THE WASHINGTON POST (July 28, 2014), 

https://www.washingtonpost.com/news/the-fix/wp/2014/

07/28/coming-soon-a-campaign-run-entirely-by-superpacs/. 

12. 2016 Presidential Campaign. Presidential candidate appeared at fundraisers for a super PAC and 

associated groups. Maggie Haberman & Nicholas 

Confessore, Hillary Clinton Embraces a ‘Super PAC,’ 

Trying to Erode a Republican Edge, N.Y. TIMES (May 

6, 2015), https://www.nytimes.com/2015/05/07/us/pol

itics/hillary-clinton-to-court-donors-for-super-pac.html. 

13. 2016 Presidential Campaign. A presidential 

candidate-backed super PAC effectively acted as the 

campaign’s advance staff. Emma Roller, When a Super 

PAC Acts Like a Campaign, THE ATLANTIc (Sept. 10, 

2015), https://www.theatlantic.com/politics/archive/20

15/09/when-a-super-pac-acts-like-a-campaign/455679/. 

14. 2016 Presidential Campaign. A super PAC 

organized town halls across a state for a presidential 

candidate. Brianne Pfannenstiel & Jeffrey C. Kummer, 

In Iowa, super PACs take on new roles, DES MOINES 
8a 

REGISTER (Aug. 22, 2015), https://www.desmoines

register.com/story/news/elections/presidential/caucus/

2015/08/22/iowa-super-pacs-take-new-roles/32154961/. 

Examples Primarily Raising the Risk of Donors 

Seeking to Influence Policy Through Super PAC 

Contributions 

15. 2020 North Carolina Insurance Commissioner 

Campaign. Businessman funnels $2 million into super 

PAC backing insurance commissioner’s reelection 

campaign in exchange for commissioner’s promise to 

assign a new regulator to oversee businessman’s 

corporation. Ames Alexander, Watch secretly recorded 

videos from the bribery sting that targeted Durham 

billionaire, THE CHARLOTTE OBSERVER (Mar. 10, 

2020), https://www.charlotteobserver.com/news/local/

article241043236.html. 

16. 2016 U.S. Senate Campaign. A businessman 

contributed $750,000 to a super PAC backing the 

senator. In return, the senator promised to provide 

visas for the businessman’s foreign girlfriend and to 

help push policies that would benefit the man’s 

business. The senator was indicted on bribery and 

other charges for the contribution. The businessman 

was attempting to avoid a Medicare audit, which 

eventually revealed that he had stolen millions of 

dollars from the Medicare system. Matt Friedman, 

Testimony at Menendez trial turns to $600k in 

donations from Melgen to super PAC, POLITICO (Oct. 4, 

2017), https://www.politico.com/states/new-jersey/sto

ry/2017/10/04/menendez-trial-melgens-mysterious-600-

000-in-super-pac-donations-114868; Terry Spencer, 

17-year sentence for West Palm Beach eye doctor in $73 

million Medicare fraud case, SOUTH FLORIDA SUN 

SENTINEL (Feb. 22, 2018), https://www.sun-sentinel. 

com/local/palm-beach/fl-pn-doctor-medicare-sentencing-
9a 

menendez-20180222-story.html; see also Indictment, 

United States v. Menendez, No. 15-CR-155 (D.N.J. 2017). 

17. 2018 Alabama House of Representatives 

Campaign. State congressman was approached by his 

state’s attorney general and executives from a coal 

company with an offer to control a super PAC to which 

the coal company would donate. In exchange, the 

congressman was asked to thwart the EPA’s cleanup 

of a superfund pollution site by speaking out against 

the site and working to keep the EPA from placing the 

site on a ‘National Priority List.’ Josh Moon, Source: 

State Rep. was offered superfund bribe with Luther 

Strange present, ALABAMA POLITICAL REPORTER (June 

29, 2017), https://www.alreporter.com/2017/06/29/sou

rce-state-rep-offered-superfund-bribe-strange-present/. 

18. 2020 Presidential Campaign. The head of a 

presidential candidate-backed super PAC is the wife 

of a CEO of a large entertainment corporation. During 

COVID-19 shut-downs, the corporation was classified 

as an essential business. Alfred Konuwa, Linda 

McMahon’s Trump Ties Under Scrutiny As WWE Is 

Deemed Essential In Florida, FORBES (Apr. 15, 2020), 

https://www.forbes.com/sites/alfredkonuwa/2020/04/1

5/linda-mcmahons-trump-ties-under-scrutiny-aswwe-is-deemed-essential-in-florida/#6fa141321391. 

19. 2018 Florida Gubernatorial Campaign. An 

incumbent governor directed lucrative state pension 

funds to two private equity investors who then 

donated to a super PAC supporting his campaign. 

Andrew Perez & David Sirota, Rick Scott Super PAC 

Received Donations From Firms With Florida Pension 

Business, MAPLIGHT (Apr. 19, 2018), https://maplight.

org/story/rick-scott-super-pac-received-donations-fromfirms-with-florida-pension-business/. 
10a 

Examples Primarily Raising the Risk of 

Circumvention Through Family Donations 

20. 2014 U.S. Senate Campaign. Senatorial candidate’s family donates $300,000 to super PAC backing 

the candidate. Cameron Joseph, Dan Sullivan’s family 

gives $300K to super-PAC, THE HILL (Aug. 14, 2014), 

https://thehill.com/blogs/ballot-box/senate-races/215113-

sullivans-family-gives-300k-to-super-pac. 

21. 2014 U.S. Senate Campaign. Senatorial candidate’s great uncle contributes $100,000 to super PAC 

backing the candidate to fund a negative campaign ad 

attacking the candidate’s opponent. Roseann Moring, 

PAC funded by Senate candidate Ben Sasse’s greatuncle releases Shane Osborn attack ad, OMAHA 

WORLD-HERALD (Apr. 16, 2014), https://www.omaha. 

com/news/pac-funded-by-senate-candidate-ben-sasse-sgreat-uncle/article_61b5803e-2e63-5ee0-a603-8c991c9

05828.html. 

22. 2014 U.S. Senate Campaign. Parents founded 

and funded super PAC to back their son in an election 

for a U.S. Senate seat. Scott Powers, Congressional 

candidate has faith in technology, ORLANDO SENTINEL

(Aug. 18, 2014), https://www.orlandosentinel.com/pol

itics/os-congressional-gabriel-rothblatt-20140817-story.

html. 

23. 2014 Campaign for U.S. House of Representatives. Super PAC backing a congressional candidate is 

completely funded by himself and his family. Chris 

Casteel, Outside group backing Mike Turner funded by 

Turners, THE OKLAHOMAN (June 20, 2014), https:// 

oklahoman.com/article/4946651/outside-group-backingmike-turner-funded-by-turners. 

24. 2012 Presidential Campaign. Presidential \]\ 

father contributed $1.9 million to super PAC backing 
11a 

the candidate. Robin Bravender & Kenneth P. Vogel, 

Huntsman dad gave super PAC $1.9M, POLITICO (Feb. 

1, 2012), https://www.politico.com/story/2012/01/hunts

mans-dad-floated-super-pac-19-million-072211. 

25. 2020 Campaign for U.S. House of Representatives. A congressional candidate’s husband donated 

$500,000 to a super PAC that ran attack ads on her 

opponent. He was the super PAC’s only donor. David 

Wildstein, Patrick Kennedy gave $500k to super PAC 

attacking his wife’s opponent, NEW JERSEY GLOBE 

(May 28, 2020), https://newjerseyglobe.com/congress/

patrick-kennedy-gave-500k-to-super-pac-attacking-hiswifes-opponent/. 

Examples Primarily Raising the Risk of 

Coordination Between Campaigns and Super 

PACs Run by Former Aides or Close Associates 

26. 2018 U.S. Senate Campaign. A super PAC 

organized and fundraised campaign events for a 

senatorial candidate that the candidate attended. The 

candidate’s personal assistant at his law firm organized the group and became its treasurer, while also 

managing the campaign’s Facebook page. Complaint, 

Campaign Legal Center v. Remember Mississippi

(FEC Mar. 26, 2018), https://campaignlegal.org/

document/complaint-fec-chris-mcdaniel-and-remembermississippi-pac. 

27. 2016 Presidential Campaign. A presidential 

candidate-backed super PAC was run by a former 

campaign aide. Matea Gold, Pro-Clinton super PAC 

Priorities USA Action continues steady fundraising 

pace in July, THE WASHINGTON POST (Aug. 1, 2015), 

https://www.washingtonpost.com/news/post-politics/wp/

2015/08/01/pro-clinton-super-pac-priorities-usa-actioncontinues-steady-fundraising-pace-in-july/. 
12a 

28. 2012 Presidential Campaign. A presidential 

candidate-backed super PAC was spearheaded by the 

candidate’s former aides. Dan Eggen & Chris Cillizza, 

Romney backers start ‘super PAC,’ THE WASHINGTON 

POST (June 23, 2011), https://www.washingtonpost. 

com/politics/romney-backers-launch-super-pac/2011/06/

22/AGTkGchH_story.html. 

29. 2012 Presidential Campaign. A super PAC 

backing a presidential incumbent up for reelection was 

run by two former White House aides. Pete H. Stone, 

supra.

30. 2020 Presidential Campaign. Two of presidential incumbent’s senior staffers start a super PAC 

almost immediately after leaving the campaign, and 

the incumbent’s current campaign manager and deputy 

campaign manager were the former presidents of 

another super PAC. Complaint, Campaign Legal Ctr. 

v. Make America Number 1 (FEC Oct. 6, 2016), 

https://campaignlegal.org/document/fec-complaint-makeamerica-number-1-and-rebuilding-america-now. 

Examples Primarily Raising the Risk of 

Coordination Exploiting the “Safe Harbor” for 

Communication That Occurs in Public 

31. 2020 Presidential Campaign. A campaign 

manager tweeted about a specific ad strategy, and 

soon after a super PAC backing the presidential 

candidate spent about $600,000 on a nearly identical 

strategy. Michelle Ye Hee Lee, Buttigieg and super 

PAC improperly coordinated on Nevada ads, watchdog 

group says, THE WASHINGTON POST (Feb. 18, 2020), 

https://www.washingtonpost.com/politics/buttigieg-andhis-super-pac-improperly-coordinated-on-nevada-adswatchdog-group-says/2020/02/18/e46609ae-5273-11eab119-4faabac6674f_story.html. 
13a 

32. 2012 Campaign for U.S. House of Representatives. A political party shared information about 

advertising buys made by Democratic House candidates in tight races through a seemingly unconnected 

Twitter account called AdBuyDetails. Paul Blumenthal, 

Democrats Used Twitter, Too, To Coordinate With 

Outside Groups, HUFFPOST (Dec. 6, 2017), https:// 

www.huffpost.com/entry/democrats-twitter-coordinati

on_n_6188852?1416517288=. 

33. 2014 U.S. House of Representatives Campaign 

(multiple seats). A political party and outside affiliated 

groups used anonymous Twitter accounts to share 

internal polling data ahead of the midterm elections. 

A typical tweet read: “CA-40/43-44/49-44/44-50/36-

44/49-10/16/14-52-->49/476-10s.” Posts like this represented polling data for various House races. Philip 

Bump, Republicans, Twitter and the brave new 

world of campaign/outside group coordination, THE 

WASHINGTON POST (Nov. 17, 2014), https://www.wash

ingtonpost.com/news/the-fix/wp/2014/11/17/republicanstwitter-and-the-brave-new-world-of-campaignoutsidegroup-coordination/; see also Complaint, MUR 6908, 

Am. Democracy Legal Fund v. Nat’l Republican 

Congressional Comm. (FEC Dec. 4, 2014), https:// 

www.fec.gov/files/legal/murs/6908/19044463506.pdf. 

34. 2016 U.S. Senate Campaign. A super PAC 

announced a $1 million six-week ad campaign in 

support of a senatorial candidate in detail in a press 

release shared on its website. The press release 

describes the ad, whom the ad targets, where the ad 

will be broadcasted, and how long the ad will be 

broadcasted for. Press Release, EMILY’S LIST, EMILY’S 

List Kicks Off WOMEN VOTE! in 2016 Cycle with $1 

Million Program in Maryland Senate Contest (Nov. 30, 

2015), https://www.emilyslist.org/news/entry/emilys-
14a 

list-kicks-off-women-vote-in-2016-cycle-with-1-millionprogram-in-ma. 

35. 2016 Presidential Campaign. A super PAC 

announces that it took out an opposition ad, detailing 

the ad, its message, what footage of the opposing 

candidate it uses, and which state it will target. Press 

Release, AMERICAN CROSSROADS, American Crossroads 

Launches Clinton E-Mail Ad in Iowa (Sept. 15, 2015), 

http://www.americancrossroads.org/2015/09/american

-crossroads-launches-clinton-e-mail-ad-in-iowa/. 

36. 2018 U.S. House of Representatives and U.S. 

Senate (multiple seats). Candidates posted B-roll 

footage on a publicly accessible site, Youtube.com, and 

thereafter PACs backing the candidate used the 

footage to make ads. Has a candidate appeared in ads 

sponsored by an outside group?, COORDINATION 

WATCH, https://www.coordinationwatch.org/candidateappeared-ads-outside-group (July 2, 2020). 

37. 2020 Presidential Campaign. Super PAC’s 

Facebook ads promoting a presidential candidate had 

links that directed Facebook users to a page on the 

candidate’s campaign website urging them to sign 

petitions and enter their email and other contact 

information, essentially allowing the campaign to 

collect valuable voter data from the super PAC’s ads. 

Lachlan Markay et al., How One Dem Super PAC 

Uses Facebook Ads to Get Critical Voter Data to its 

Candidate, THE DAILY BEAST (Apr. 23, 2019), 

https://www.thedailybeast.com/jay-inslees-super-pachas-found-a-novel-way-to-use-facebook-ads-to-get-hiscampaign-critical-voter-data?ref=wrap. 

38. 2014 U.S. Senate Campaign. A senatorial 

candidate published memorandums on his campaign 

website that detailed ad spending. Adam Wollner, 10 
15a 

Ways Super PACs and Campaigns Coordinate, Even 

Though They’re Not Allowed To, THE ATLANTIC (Sept. 

27, 2015), https://www.theatlantic.com/politics/arch

ive/2015/09/10-ways-super-pacs-and-campaigns-coord

inate-even-though-theyre-not-allowed-to/436866/. 

39. 2016 Presidential Campaign. A presidential 

candidate published her travel schedule online so a 

super PAC could get to events in advance and set up 

banners and signs. Nick Corasaniti, Carly Fiorina’s 

‘Super PAC’ Aids Her Campaign in Plain Sight, N.Y.

TIMES (Sept. 30, 2015), https://www.nytimes.com/

2015/10/01/us/politics/as-carly-fiorina-surges-so-doesthe-work-of-her-super-pac.html. 

40. 2012 Presidential Campaign. A presidential 

candidate’s campaign publicly endorses a particular 

super PAC. Christina Bellantoni, Obama Plays the 

Super PAC Game, Endorses Priorities USA, PBS (Feb. 

7, 2012), https://www.pbs.org/newshour/politics/pres

ident-obama-plays-the-super-pac-game. 

41. 2020 Presidential Campaign. A presidential 

candidate’s campaign publicly signaled that a particular group was its preferred super PAC, praising the 

organization without referring to any other outside 

Democratic group. Ken Thomas, Biden Campaign 

Indicates Priorities USA Is Preferred Super PAC, 

WALL STREET JOURNAL (Apr. 15, 2020), https://www. 

wsj.com/articles/biden-campaign-indicates-priorities-usais-preferred-super-pac-11586986904.