No. 19–1398 

IN THE

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 OF UNITED STATES SENATORS AS 

AMICI CURIAE IN SUPPORT OF PETITIONERS 

GARY W. KUBEK

NORA NIEDZIELSKI-EICHNER

JOSHUA M. GOLDMAN

DEBEVOISE & PLIMPTON LLP

919 THIRD AVENUE

NEW YORK, N.Y. 10022

(212) 909–6000

DAVID A. O’NEIL

 Counsel of Record

DEBEVOISE & PLIMPTON LLP

801 PENNSYLVANIA AVE. N.W.

WASHINGTON, D.C. 20004

daoneil@debevoise.com

(202) 383–8000

Counsel for Amici Curiae
 

 

i

TABLE OF CONTENTS 

Page

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

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

ARGUMENT .............................................................. 4

I. SpeechNow Wrongly Created a Shadow 

Campaign Finance System in Which 

Corruption, or the Appearance Thereof, Is 

Endemic and Inevitable. ................................. 4

A. “Independent” Contributions Have 

a Significant and Unhealthy 

Influence over the Legislative 

Process................................................. 11

B. The Ability to Make Unlimited 

Contributions Gives Special 

Interests the Power to Threaten to 

Make or Withhold Those 

Contributions...................................... 16

C. Unlimited Contributions to 

Independent Expenditure Groups 

Make Effective Regulation of 

Political Spending Impossible............ 19

II. The Public’s Declining Faith in Our 

Democracy Is Evidence That Unlimited 

Contributions Give Rise to the Perception 

of Corruption. ................................................ 24

CONCLUSION......................................................... 28
 

 

ii

 TABLE OF AUTHORITIES 

Page

Table of Authorities 

CASES 

Buckley v. Valeo, 424 U.S. 1.................................7, 19

Citizens United v. Fed. Election Comm’n, 558 

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

Doe, 1 v. Fed. Election Comm’n, 920 F.3d 866 

(D.C. Cir. 2019).......................................................7

Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 564 U.S. 721 (2011) .............................22

SpeechNow.org v. Fed. Election Comm'n, 599 

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

OTHER AUTHORITIES 

11 CFR 104.3(a)(4) ....................................................21

84 Fed. Reg. 2504 (Feb. 9, 2019).................................8

Adam Wollner, 10 Ways Super PACs and 

Campaigns Coordinate, Even Though 

They're Not Allowed To, The Atlantic

(Sept. 27, 2015) ....................................................23
 

 

iii

Alana Abramson, A Koch Brothers Group Is 

Targeting These Democratic Senators for 

Voting Against Tax Reform, Time (Feb. 13, 

2018).....................................................................13

Albert W. Alschuler et. al., Why Limits on 

Contributions to Super PACs Should 

Survive Citizens United, 86 Fordham L. 

Rev. 2299 (2018) ..................................................14

Alex Isenstadt, Trump to Appear at 

Fundraiser for Allied Super PAC, Politico 

(May 29, 2018) .....................................................23

Allan Holmes et al., Did Billionaires Pay Off 

Republicans for Passing the Trump Tax 

Bill?, Ctr. for Pub. Integrity (Feb. 7, 2019).........10

Amisa Ratliff, The Outside Money Race: How 

much are outside groups spending in the 

2020 presidential race?, Issue One (July

20, 2020 ..................................................................5

Andrea Drusch, AFP Launches TV Ads 

Against Ted Strickland. Are They the Start

of Another Big Campaign?, The Atlantic

(Aug. 18, 2015)......................................................12

Bill Allison et al., Trump's Mysterious SuperPAC Donor Accused of Breaking Law, 

Bloomberg (July 25, 2018)......................................7
 

 

iv

Charlotte Hill, The real reason the NRA’s 

money matters in elections, Vox (Mar. 24, 

2018).....................................................................17

Conservative Solutions PAC, OpenSecrets

(last visited July 17, 2020) ....................................9

Coral Davenport, Heads in the Sand, The 

Atlantic (Dec. 4, 2011)..........................................17

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

New Soft Money: Outside Spending in 

Congressional Elections (2014) ...........................16

Dodging Disclosure, Campaign Legal Center

(Nov. 2018).......................................................7, 21

Glenn Thrush, Mulvaney, Watchdog Bureau’s 

Leader, Advises Bankers on Ways to 

Curtail Agency, N.Y. Times (Apr. 24, 2018) .......27

Grow NC Strong, OpenSecrets (last visited 

July 17, 2020).........................................................9

Idrees Kahloon, Does Money Matter?, 

Harvard Mag. (Aug. 2016).....................................5

Independent Expenditures Against Former 

Sen. Russell Feingold, 2015–2016, Fed. 

Election Comm’n (last visited July 17, 2020) ......13

Jake Sherman & Alex Isenstadt, Sheldon 

Adelson kicks in $30M to stop Democratic 

House takeover, Politico (May 10, 2018) ..............6
 

 

v

Joe Hagan, The Coming Tsunami of Slime, 

N.Y. Mag. (Jan. 22, 2012) ....................................12

Jonathan Weisman, Senate Blocks Drive for 

Gun Control, N.Y. Times (Apr. 17, 2013) ...........17

Joshua L. Kalla & David E. Broockman, 

Campaign Contributions Facilitate Access 

to Congressional Officials: A Randomized 

Field Experiment, 60 Am. J. of Pol. Sci. 

545 (2016).............................................................25

Karl Evers-Hillstrom et al., More money, less 

transparency: A decade under Citizens 

United, OpenSecrets (Jan. 14, 2020) ....................6

Karl Evers-Hillstrom, Super PACs 

outmaneuver outdated rules to leave voters 

in the dark, OpenSecrets (Mar. 18, 2020).......7, 21

Kate Ackley, Super PACs after 10 years: 

Often maligned but heavily used, Roll Call 

(Jan. 16, 2020)........................................................8

Ken Thomas, Biden Campaign Indicates 

Priorities USA Is Preferred Super PAC, 

Wall St. J. (Apr. 15, 2020) ...................................23

Kristen M. Clark, Patrick Murphy's dad 

dumps $1M into Senate Democrats' super 

PAC, Tampa Bay Times (Aug. 20, 2016) ..............9

Larry M. Bartels, Economic Inequality and 

Political Representation (Aug. 2005) ..................26
 

 

vi

Maggie Severns, 'Oh that's cool — do that!': 

Super PACs use new trick to hide donors, 

Politico (Aug. 17, 2018)........................................14

Maggie Severns, Warren, Biden and Buttigieg

dangerously close to going broke, Politico 

(Feb. 21, 2020)........................................................8

Mark Landler, For Trump, an Embassy in 

Jerusalem Is a Political Decision, Not a 

Diplomatic One, N.Y. Times (Dec. 6, 2017) ..........6

Martin Gilens, Affluence and Influence (2012) .......25

Matea Gold, Hedge-fund manager S. Donald 

Sussman gave $21 million to pro-Clinton 

super PAC Priorities USA, Wash. Post

(Oct. 20, 2016)......................................................14

Matea Gold, It’s bold, but legal: How 

campaigns and their super PAC backers 

work together, Wash. Post (July 6, 2015)............17

Michael Beckel, Behind the Price of Power: 

Q&A with Former Rep. Tom Davis (R-VA), 

Issue One (July 25, 2017)....................................13

NBC News/Wall Street Journal Survey, NBC 

News 12 (Sept. 19, 2018) .....................................24

Races in Which Outside Spending Exceeds 

Candidate Spending, 2018 Election Cycle, 

OpenSecrets (last visited July 17, 2020)...............5
 

 

vii

Robert Draper, Inside the Power of the NRA, 

N.Y. Times Mag. (Dec. 12, 2013)...................17, 18

Steven Bertoni, Billionaire Sheldon Adelson 

Says He Might Give $100M To Newt 

Gingrich Or Other Republican, Forbes 

(Feb. 21, 2012)......................................................14

Super PACs, OpenSecrets (last visited July 

17, 2020).................................................................5

Washington Post – ABC News Poll, Wash. 

Post (Mar. 10, 2012).............................................25

Widespread Government Corruption, Gallup 

(Sept. 19, 2015) ....................................................24

Wilks, Farris C. & Jo Ann: Donor Detail, 

OpenSecrets (last visited July 17, 2020)...............8
 

 

1

INTEREST OF AMICI CURIAE 

Amici curiae are United States Senators 

Sheldon Whitehouse of Rhode Island, Patrick Leahy 

of Vermont, Tom Udall of New Mexico, Richard 

Blumenthal of Connecticut, Mazie Hirono of Hawaii

and Chris Van Hollen of Maryland.

1 Amici are 

popularly elected Senators. We have seen the 

damage inflicted on our democracy by a regime of 

unlimited contributions to organizations that engage 

in so-called “independent” political spending. 

Accordingly, amici respectfully support Petitioners’ 

request that the Court grant the petition for a writ of 

certiorari in this case. 

SUMMARY OF ARGUMENT 

Amici have participated in dozens of federal 

campaigns and legislative efforts, both before and 

after SpeechNow,

2 and bear witness to the 

corrupting effects of Super PACs and their big 

donors in this country’s political and legislative 

spheres. Our long-standing dispute with this Court’s 

 

1 Amici affirm that no counsel for a party to these 

proceedings authored this brief in whole or in part, and that no 

person other than amici or their counsel made a monetary 

contribution to its preparation or submission. The parties 

received timely notice of filing, and consents have been 

provided to amici. See Sup. Ct. R. 37.

2 SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686 

(D.C. Cir. 2010).
 

 

2

decision in Citizens United v. FEC 3 is well 

documented, but we do not ask the Court in this case 

to overturn or reconsider Citizens United. At issue 

here is the D.C. Circuit’s incorrect application of 

Citizens United. 

An independent-expenditure-only organization (hereinafter “independent” organization or 

group) spending unlimited amounts in an election is 

a very different thing from such a group accepting 

unlimited donations. By every practical measure, 

the latter activity will increase the risk of corruption 

and further the appearance of quid pro quo

corruption. In this case, the Court of Appeals 

applied its own incorrect precedent from SpeechNow

to allow unlimited contributions to Super PACs. 

This Court should reject SpeechNow’s conclusion 

that unlimited contributions to “independent” 

organizations do not corrupt or create the 

appearance of corruption. That conclusion is neither 

required by Citizens United nor consistent with the 

facts on the ground in our politics.

Permitting unlimited contributions to 

“independent” entities allows the appearance of quid 

pro quo corruption—and actual corruption—to 

flourish, demoralizing voters and concentrating 

power in the hands of a startlingly tiny number of 

very wealthy individuals. The Super PAC shadow 

campaign finance system has overwhelmed 

 

3 558 U.S. 310 (2010).
 

 

3

candidates and political parties, and allows special 

interests to conceal their identities from voters who 

seek to understand what is happening in the public 

sphere. The notion that officeholders or candidates 

will not learn the identity of their enormous donors 

is fanciful and without foundation. And the ability 

to make unlimited contributions confers the ability 

to threaten or promise unlimited contributions, 

allowing mega-donors a dangerous means of 

influence undetectable to the public eye. 

This is all a rich recipe for corruption. 

Massive donations inherently tend toward 

corruption. Covert massive donations—known only 

to the donor, the candidate, and those facilitating the 

transaction—exacerbate the risk of corruption. And 

private threats and promises of massive donations 

defy the predicates of “transparency” and 

“independence” that Citizens United applied to 

expenditures, presumed to protect against 

corruption. 

These dangers are irremediable. The rot must 

be cut at its source. Given the stakes often at play in 

Congress, there is no natural upper bound on 

political contributions by special interests and no 

limit to the force of their corrupting influence. 

Hundred-million-dollar influence operations can 

yield hundred-billion-dollar political returns. It 

should be no surprise that there is a public crisis of 

confidence in our democracy. The disenchanted 

voters are not wrong. 
 

 

4

Citizens United does not support, much less 

compel, the result below. SpeechNow defeats the 

transparency and independence that the majority in 

Citizens United presumed to be safeguards against 

corruption. SpeechNow was wrongly decided; it 

runs contrary to our daily experience of human and 

political nature; and its consequences have befouled 

our democracy. This Court should reassert its 

jurisprudence allowing sensible limits on 

contributions and protecting the health of America’s 

body politic. 

ARGUMENT 

I. SpeechNow Wrongly Created a Shadow 

Campaign Finance System in Which 

Corruption, or the Appearance Thereof, Is 

Endemic and Inevitable. 

The hallmarks of the SpeechNow shadow 

campaign finance system are these: contributions so 

large that they dominate an election; concentration 

of power in the hands of a few mega-donors; and 

covert political operations that deny citizens basic 

civic information. 

Start with size. “Independent” groups 

outraising even candidates themselves is becoming 

increasingly common. During the 2020 election cycle, 

with the election still more than three months away, 
 

 

5

Super PACs have already raised $1.06 billion.

4 In 

contrast, the combined amount raised directly by 

Donald Trump and Joe Biden is only $630 million.5 

“Independent” groups outspent candidates in 126 

congressional races since SpeechNow, including 28 

races in 2018.6 At one point in the 2016 presidential 

election cycle, an astounding two out of every three 

dollars had flowed to an “independent” group rather 

than to candidates’ campaigns.7 Once an aberration, 

this form of political influence is increasingly the 

new normal—indeed it is now the dominant presence 

in many elections.

On to concentration: just ten donors account 

for over $1 billion, or one-fifth, of all Super PAC 

 

4 Super PACs, OpenSecrets, https://www.opensecrets.org/

pacs/superpacs.php (last visited July 21, 2020).

5 Amisa Ratliff, The Outside Money Race: How much are 

outside groups spending in the 2020 presidential race?, Issue 

One (July 20, 2020), https://www.issueone.org/10-key-numbersfrom-the-latest-presidential-campaign-finance-filings/.

6 Races in Which Outside Spending Exceeds Candidate 

Spending, 2018 Election Cycle, OpenSecrets, 

https://www.opensecrets.org/outsidespending/outvscand.php?cy

cle=2018. Note that these figures include spending on primary 

and general elections (last visited July 17, 2020). 

7 Idrees Kahloon, Does Money Matter?, Harvard Mag.

(Aug. 2016), https://harvardmagazine.com/2016/07/does-moneymatter.
 

 

6

contributions from 2010 through 2019.8 Unlimited 

Super PAC donations allow individuals with 

sufficient wealth to exert outsized influence, not just 

on election dynamics, but also on policy. Billionaire 

Sheldon Adelson contributed $20 million to Super 

PACs supporting President Trump, which 

apparently secured him a personal meeting days 

before Trump took office, where Adelson could lobby 

on a major policy goal (moving the U.S. embassy in 

Israel), which Trump effectuated during his first 

year in office.9 The likelihood of those facts being 

unconnected is nil in our estimation; at the very 

least, it creates an appearance of corruption.10

 

8 Karl Evers-Hillstrom et al., More money, less 

transparency: A decade under Citizens United, OpenSecrets

(Jan. 14, 2020), https://www.opensecrets.org/news/reports/adecade-under-citizens-united. 

9 Mark Landler, For Trump, an Embassy in Jerusalem Is 

a Political Decision, Not a Diplomatic One, N.Y. Times (Dec. 6, 

2017), https://www.nytimes.com/2017/12/06/us/politics/trumpembassy-jerusalem-israel.html.

10 See, e.g., a similar effort by Adelson involving

congressional leadership. In the run-up to the 2018 midterms, 

then-House Speaker Paul Ryan met with Adelson, from whom 

the GOP sought a $30 million contribution into a Super PAC 

aimed at holding a GOP House majority. While Ryan could not 

officially solicit the contribution, after the meeting he “left the 

room” as former Senator Norm Coleman “made the ask and 

secured the $30 million contribution.” 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/adelson-republicans-
 

 

7

And last, secrecy. Mega-donors can be the 

dominant force in an election without voters 

knowing. While Super PACs are required to disclose 

their donors, they do so in FEC filings that can be 

made weeks or months after the advertising they 

funded has run, even after the election is over. 11 

Belated transparency is little better than no 

transparency. Worse, contributions are often 

shuttled through non-profits, shell corporations, 

donor-advised trusts, LLCs and other screening 

entities to hide the true donors from the public.12 

Back-channel information flowing between donors 

and candidates is impossible to regulate. A system 

where only the donor and the candidate know the 

origin of large Super PAC contributions is a highway 

to corruption. 

 

midterms-579436. This Court has long recognized that this 

type of “prearrangement and coordination” invites a “danger 

that expenditures will be given as a quid pro quo for improper 

commitments from the candidate,” Citizens United, 558 U.S. at

346 (2010) (quoting Buckley v. Valeo, 424 U.S. 1. 47 (1976)).

11 See, e.g., infra notes 38, 39. 

12 See, e.g., Bill Allison et al., Trump's Mysterious SuperPAC Donor Accused of Breaking Law, Bloomberg (July 25, 2018), 

https://www.bloomberg.com/news/articles/2018-07-26/pro-trumpsuper-pac-got-illegal-contributions-complaint-alleges; Doe, 1 v. 

Fed. Election Comm’n, 920 F.3d 866, 873 (D.C. Cir. 2019), cert. 

denied, 206 L. Ed. 2d 462 (Mar. 23, 2020) (affirming FEC 

authority to disclose identities of donors who illegally funneled a 

contribution through a nonprofit).
 

 

8

The corruption and appearance of corruption 

created by Super PACs is exacerbated by so-called 

“single candidate” Super PACs. A contribution to a 

Super PAC that solely supports a single candidate in 

a single election has the same practical effect as a 

contribution to that candidate for that election—but 

the former is unlimited under SpeechNow, while the 

latter is limited to $2,800. 13 Most presidential 

candidates in the 2020 campaign have had a singlecandidate Super PAC. 14 Many congressional 

elections do as well.15 These single-candidate Super 

PACs have received eye-popping individual 

contributions, such as Texas petroleum billionaires 

Farris and Jo Ann Wilkes’s $10 million to a Super 

PAC supporting Senator Ted Cruz’s presidential 

campaign;16 billionaire car dealer Norman Braman’s 

 

13 See Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure 

Threshold, 84 Fed. Reg. 2504, 2506 (Feb. 9, 2019). 

14 See, e.g., Kate Ackley, Super PACs after 10 years: 

Often maligned but heavily used, Roll Call (Jan. 16, 2020), 

https://www.rollcall.com/2020/01/16/super-pacs-after-10-yearsoften-maligned-but-heavily-used/; Maggie Severns, Warren, 

Biden and Buttigieg dangerously close to going broke, Politico

(Feb. 21, 2020), https://www.politico.com/news/2020/02/21/fecbernie-2020-funding-116558.

15 See, e.g., Ackley, supra note 14. 

16 Wilks, Farris C. & Jo Ann: Donor Detail, OpenSecrets, 

https://www.opensecrets.org/outsidespending/donor_detail.php?

cycle=2016&id=U0000004569&type=I&super=N&name=Wilks

%2C+Farris+C.+%26+Jo+Ann (last visited July 17, 2020). 
 

 

9

$7 million to a Super PAC supporting Senator Marco 

Rubio’s presidential campaign; 17 RAI Service 

Company (a subsidiary of Reynolds Tobacco)’s $1.1 

million to a Super PAC supporting Senator Richard 

Burr’s campaign; 18 and Florida builder Thomas 

Murphy Jr.’s $1.5 million to two Super PACs 

supporting the Senate campaign of his son, 

Representative Patrick Murphy. 19 Such massive 

donations foster an appearance of quid pro quo 

corruption.20

The 2017 federal tax cuts bill exemplifies the 

appearance-of-corruption problem caused by 

unlimited contributions. Mega-donor Doug Deason

told lawmakers attending a weekend retreat hosted 

 

17 Conservative Solutions PAC, OpenSecrets, 

https://www.opensecrets.org/

outsidespending/contrib_all.php?cmte=C00541292&type=A&cy

cle=2016 (last visited July 17, 2020).

18 Grow NC Strong, OpenSecrets, https://www.

opensecrets.org/outsidespending/contrib_all.php?cmte=C00545

152&type=A&cycle=2016 (last visited July 17, 2020).

19 Kristen M. Clark, Patrick Murphy's dad dumps $1M 

into Senate Democrats' super PAC, Tampa Bay Times

(Aug. 20, 2016), https://www.tampabay.com/patrick-murphysdad-dumps-1m-into-senate-democrats-super-pac/2290408/. 

20 Truth be told, the very existence of single-candidate 

Super PACs, and worse yet single-donor single-candidate Super 

PACs, mocks the Citizens United predicate of “independence.” 
 

 

10

by big donors 21 that “the Dallas piggy bank” was 

closed until they repealed Obamacare and “[got] tax 

reform passed.” 22 A few months later, 

Representative Chris Collins told reporters in 

relation to the tax bill, “My donors are basically 

saying: ‘Get it done or don’t ever call me again.’”23 An 

analysis found that 144 donors gave a minimum of 

$50,000 each—and an unlimited maximum—to 

Republican and conservative PACs during the sixty 

days around the passage of the 2017 tax cuts.24 For 

87 of those donors, their contributions were a 

significant aberration from their usual contribution 

patterns. 25 Such contributions obviously lend the 

appearance of quid pro quo corruption, given the 

personal financial benefit big donors reaped from the 

bill.

Defending the political system from actual or 

apparent corruption is one high and proper purpose 

 

21 Pause and reflect for a moment just on that: lawmakers 

attending a weekend retreat hosted by big donors.

22 Allan Holmes et al., Did Billionaires Pay Off 

Republicans for Passing the Trump Tax Bill?, Ctr. for Pub. 

Integrity (Feb. 7, 2019), https://publicintegrity.org/inequalitypoverty-opportunity/taxes/trumps-tax-cuts/did-billionaires-payoff-republicans-for-passing-the-trump-tax-bill/.

23 Id.

24 Id.

25 Id.
 

 

11

of campaign finance limits. A regime of unrestricted 

contributions, particularly through vehicles like 

Super PACs that were invented and deployed for 

purposes of influence, is improper per se and spawns 

a multitude of other improprieties. The Court should 

take this occasion to reassert its decisions protecting 

America’s democracy against powerful forces of 

corrupting influence.26

A. “Independent” Contributions Have a 

Significant and Unhealthy Influence 

over the Legislative Process. 

During our years in the Senate, we have seen 

firsthand how unlimited contributions increased the 

power of Super PACs, obscured the hands of the true 

actors in the political drama, and worsened the 

integrity of the legislative process. On issues from 

prescription drug pricing to climate change to 

campaign finance itself, special interests stop 

progress; and Senate colleagues lament that a Super 

PAC donor adverse to legislation may emerge to 

spend millions against them. Even when the 

concern is not verbalized, we have seen behavior 

change. Former senators and representatives who 

lost their seats in an onslaught of outside 

 

26 This is not the occasion to dwell on the point, but

history and experience highlight the recurring political contest 

between powerful, well-connected ‘influencers’ and regular 

citizens as one of governance’s eternal battles, a battleground 

where vigilance remains the price of freedom.
 

 

12

expenditures provide memorable examples for

candidates seeking to avoid a similar fate. As 

“independent” groups come to dominate elections, 

the incentive to avoid their attacks, or to solicit safepassage assurances from them, is powerful. 

This change in behavior is no surprise. 

Unlimited contributions enable sophisticated special 

interests to effectively control Super PACs for their 

own purposes, using them to bombard candidates or 

elected officials who do not bend the knee.27 This 

bombardment can begin even before serious public 

campaigning (the political equivalent of strafing an 

enemy’s air fleet while it is still on the ground).28 

 

27 We believe that it is obvious that unlimited political 

contributions authorized by SpeechNow are far more than mere 

‘speech’; they are weaponry. They can be deployed by one 

donor to limit, not increase, debate. They can be deployed by 

one donor to undermine, not invigorate, democracy. They can 

be deployed by one donor to silence, not add, voices. They can 

act as cajolery, muscle, threat, lies, smear and brute force. 

Their product has been described as a “tsunami of slime.” See

Joe Hagan, The Coming Tsunami of Slime, N.Y. Mag. (Jan. 22, 

2012), https://nymag.com/news/features/negative-campaigning2012-1/.

28 By way of example, two “independent” organizations, 

Americans for Prosperity and the Club for Growth—both 

funded by a small cadre of mega-donors—spent millions of 

dollars against Democratic Senate candidates over a year 

before the 2016 election. See, e.g., Andrea Drusch, AFP

Launches TV Ads Against Ted Strickland. Are They the Start

of Another Big Campaign?, The Atlantic (Aug. 18, 2015), 

https://www.theatlantic.com/politics/archive/2015/08/afplaunches-tv-ads-against-ted-strickland-are-they-the-start-of-
 

 

13

Or massive, sudden, unpredictable 29 attacks just 

before Election Day can leave a candidate no time 

even for a response.30 

 

another-big-campaign/435378/ (explaining that the Americans 

for Prosperity spent $1.4 million on ads against Ohio Senate 

candidate Ted Strickland in August of 2015, over a year before 

the election); see also Alana Abramson, A Koch Brothers Group 

Is Targeting These Democratic Senators for Voting Against Tax 

Reform, Time (Feb. 13, 2018) https://time.com/5154530/kochbrothers-democrats-tax-reform/ (discussing the $4 million ad 

campaign Americans for Prosperity launched against Senators 

McCaskill and Donnelly nine months before the 2018 election); 

Independent Expenditures Against Former Sen. Russell 

Feingold, 2015–2016, Fed. Election Comm’n, https://www.

fec.gov/data/independent-expenditures/?data_type=processed&

cycle=2016&is_notice=false&candidate_id=S8WI00026&support

_oppose_indicator=O (last visited July 17, 2020) (documenting 

that The Club for Growth Action Fund spent nearly $700,000 

on ads against Wisconsin Senate candidate and former Senator 

Russell Feingold between July and September 2015).

29 A candidate can ordinarily watch an adversary’s 

fundraising and spending, or the other party’s fundraising and 

spending, and derive some sense of how the race is shaping 

up. The prospect of unexpected, unlimited “independent” 

attacks creates the incentive to find one’s own “independent” 

champion, in a perverse political arms race. See, e.g., 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-r-va/. 

As former Rep. Davis notes, “You have the ability of these 

Super PACs to come in . . . 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.” Id. 
 

 

14

Unlimited donations make the situation even 

more dangerously prone to corruption. Why? 

Because a whole new vector of influence opens for 

the mega-donor, who may in fact be the true 

principal with the Super PAC his mere tool. We 

police this vector of donor influence when it is in the 

form of campaign contributions; why create an endaround without limits for massive contributions to 

Super PACs that are similar in practical effect to 

campaign contributions?31

 

30 See, e.g., Maggie Severns, 'Oh that's cool — do that!': 

Super PACs use new trick to hide donors, Politico (Aug. 17, 

2018), https://www.politico.com/story/2018/08/17/super-pacshidden-donors-disclosures-741795 (discussing pop-up Super 

PACs that form within weeks of an election and then “unleash[] 

their spending during the final days of the race,” which allows 

them to avoid disclosing their donors until after the election).

31 Honest and fatalistic assessments come from megadonors themselves. One donor who gave $39 million to 

Democratic Super PACs and allied groups in 2016 told the 

Washington Post, “It’s very odd to be giving millions when your 

objective is to actually get the money out of politics.” Matea 

Gold, Hedge-fund manager S. Donald Sussman gave $21 

million to pro-Clinton super PAC Priorities USA, Wash. Post

(Oct. 20, 2016), http://wapo.st/2eWWjeB?tid=ss_tw&utm_

term=.ea9737a06ac8; Albert W. Alschuler et al., Why Limits on 

Contributions to Super PACs Should Survive Citizens United, 

86 Fordham L. Rev. 2299, 2342 (2018). A Republican donor who 

gave $78 million to Republican Super PACs and allied groups 

in 2016 told an interviewer, “I’m against very wealthy people 

attempting to or influencing elections . . . . But as long as it's 

doable I'm going to do it.” Steven Bertoni, Billionaire Sheldon 

Adelson Says He Might Give $100M To Newt Gingrich Or 
 

 

15

Even if Super PACs operated with 

“independence” and within a regime of effective 

disclosure, little prevents mega-donors (or their 

surrogates) from discussing their contributions—and 

what they want in exchange for contributions—with 

candidates (or their surrogates). The current regime 

is rife with opportunity for improper influence and 

quid pro quo corruption, and it reeks of the 

appearance of it. Communication between the donor 

and the candidate can readily occur when the Super 

PAC is nominally “independent” of the candidate. 

“Independence,” where unlimited contributions are 

allowed, means nothing, except that the donor and 

the candidate are not likely to communicate through 

the Super PAC itself. But telephones have been 

around for a long time, and intermediaries for as 

long as politics. This defect is irremediable. This 

information ooze cannot be stopped. The only 

remedy is preventing the mega-donations. 

And this is not the only irremediable flaw of 

SpeechNow.

 

Other Republican, Forbes (Feb. 21, 2012), 

https://www.forbes.com/sites/stevenbertoni/2012/02/21/billionai

re-sheldon-adelson-says-he-might-give-100m-to-newt-gingrichor-other-republican/#51757f934400.
 

 

16

B. The Ability to Make Unlimited 

Contributions Gives Special Interests 

the Power to Threaten to Make or 

Withhold Those Contributions. 

By giving donors the right to make unlimited 

contributions, the D.C. Circuit gave big donors the 

power to promise or threaten to make (or withhold) 

those contributions. The right to do something and 

the power to threaten or promise to do that thing are 

inseparable. That power to threaten or promise 

allows large donors an even darker way to 

manipulate and influence politicians, this one 

entirely outside the public eye. Legislators can be 

threatened with unlimited opposition, or assured of 

unlimited support,32 and the public will have no way 

to know. Intermediaries can pass the information 

and threats and protect the principals. Sometimes 

the information and threats are made in public 

statements, which are actually directed at specific 

candidates.33 If a candidate yields to the threat or 

 

32 See generally Daniel P. Tokaji & Renata E.B. Strause, 

The New Soft Money: Outside Spending in Congressional 

Elections 83 (2014) (“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.”).

33 Sophisticated and repeat players who are the real 

political threat know all too well how to couch the threat or 

promise to technically comply with anti-coordination rules, 

including making a general announcement to the world. For 

example, Tim Phillips, president of Americans for Prosperity 

(“AFP”) Super PAC, trumpeted AFP’s success in making 
 

 

17

promise, the donor’s influence achieves its purpose 

without the need to make the contribution. 34 The 

 

climate science “political”: “What it means for candidates on 

the Republican side is, if you [] buy into green energy or you 

play footsie on this issue, you do so at your political peril. The 

vast majority of people who are involved in the [Republican] 

nominating process—the conventions and the primaries—are 

suspect of the science. And that’s our influence. Groups like 

Americans for Prosperity have done it.” Coral Davenport, 

Heads in the Sand, The Atlantic (Dec. 4, 2011), 

https://www.theatlantic.com/politics/archive/2011/12/heads-sand/

334776. See also Matea Gold, It’s bold, but legal: How 

campaigns and their super PAC backers work together, Wash. 

Post (July 6, 2015), https://www.washingtonpost.com/

politics/here-are-the-secret-ways-super-pacs-and-campaigns-canwork-together/2015/07/06/bda78210-1539-11e5-89f3-61410da94

eb1_story.html (explaining the various ways Super PACs and 

campaigns share information, including “publicly” posting 

campaign footage and strategic plans). 

34 In the wake of the 2012 massacre at Sandy Hook 

Elementary School, Democratic Senator Joe Manchin and 

Republican Senator Pat Toomey introduced legislation that 

would require universal background checks for firearm 

purchases. See Robert Draper, Inside the Power of the NRA, 

N.Y. Times Mag. (Dec. 12, 2013), https://www.nytimes.com/

2013/12/15/magazine/inside-the-power-of-the-nra.html. The 

measure “appeared to have a strong chance of passage,” 

including the support of up to ten Republican senators. 

Jonathan Weisman, Senate Blocks Drive for Gun Control, N.Y. 

Times (Apr. 17, 2013), https://www.nytimes.com/2013/04/18/

us/politics/senate-obama-gun-control.html. Days before the 

scheduled vote, the NRA sent every senator an email 

threatening to factor senators’ votes into the overall grades it 

assigns to politicians in an election year. Draper, supra. This 

threat was credible due to the enormous contributions the NRA 

receives for its “independent” expenditures. See, e.g., Charlotte 
 

 

18

political waters are unrippled. Of course if a 

candidate does not yield, a massive donation can be 

made for her opponent, spreading the shadow of 

influence while leaving the public utterly in the dark 

as to what transpired. 

In our experience, elected officials have taken 

heed, and big donors can now exert their influence 

without overtly threatening massive contributions. 

There is a saying that a good horse runs at the sting 

of the whip, a very good horse runs at the shadow of 

the whip, and a great horse runs when its rider 

thinks of the whip. A threat is the shadow of the 

whip; but the mere existence of the whip of 

unlimited contribution power, in our view, affects 

the behavior of the horses, to the point where big 

forces of influence standing in the shadows need 

merely have the whip at their disposal to augment 

their influence. 

The power to make an unlimited contribution 

is the power to threaten or promise to make that 

contribution. The power to threaten or promise 

always lurks, even where no contribution is made. 

And there is no way in the world to bring adequate 

 

Hill, The real reason the NRA’s money matters in elections, 

Vox (Mar. 24, 2018), https://www.vox.com/the-big-idea/2018/2/

27/17051560/money-nra-guns-contributions-donations-parklandmarch. As the NRA desired, the motion failed by a vote of 54 to 

46. Draper, supra.
 

 

19

transparency into this nether region created by the 

SpeechNow regime of unlimited contributions.

C. Unlimited Contributions to 

Independent Expenditure Groups Make 

Effective Regulation of Political 

Spending Impossible. 

Citizens United presumed that a regime of 

“effective disclosure” and anti-coordination rules 

would provide transparency and independence and 

thereby police and prevent corruption and even the 

appearance of corruption.35 Setting aside whether 

those presumptions were correct when Citizens 

United was decided, SpeechNow’s authorization of 

unlimited contributions to “independent” 

organizations has utterly undermined those 

presumptions today. No amount of regulation can 

address the problems created by unlimited 

contributions. 

Citizens United assumed that campaign 

finance disclosures would be “rapid and informative” 

in “a campaign finance system that pairs corporate 

independent expenditures with effective 

disclosure....”

36 Instead, a shadow system of 

 

35 Citizens United, 558 U.S. at 357, 370 (2010) (explaining 

that anti-coordination rules “substantially diminish[ ]” the 

“potential for abuse” of independent expenditures) (quoting 

Buckley 424 U.S. at 47 (1976)).

36 Id. at 370.
 

 

20

unlimited and often anonymous donations to 

“independent” campaign groups mocks that premise 

and denies the public timely intelligible information. 

When donor X contributes to candidate Y, no 

matter the amount, there is a clear and public link 

between donor X and candidate Y. When donor X 

makes a contribution to an “independent” 

organization, which then spends on behalf of 

candidate Y, the public link between donor X and 

candidate Y is obscured—except likely to donor X 

and candidate Y. Add another layer by creating a 

front group to route the contribution through (the 

task of an afternoon), and the link is even more 

obscure—except again to the donor and candidate. 

For a small donor, this does not matter. The signal 

of her small donation gets lost in a campaign’s noise. 

But make it a five million dollar contribution and 

everything changes.

This is a pathway to corruption; the risk of 

corruption is unavoidable in a system where 

“independent” and “transparent” expenditures are in 

fact neither; and that pathway widens to a 

corruption interstate highway when expenditures 

enabled by unlimited donations flow in amounts 

surpassing direct candidate expenditures. 

The whole scheme enabled by SpeechNow lets 

mega-donors deprive voters of information they need 

to evaluate the political contest unfolding before 

them. Super PACs ostensibly must disclose their 
 

 

21

donors,37 but various practices allow Super PACs to 

dodge pre-election disclosure, depriving voters of 

information when it is most actionable: when they 

cast their ballot. “Pop-Up” Super PACs flout 

disclosure by materializing just prior to an election, 

rapidly spending, and then disclosing donors only 

after the election.38 Or Super PACs can claim to 

spend on credit and not disclose their donors until 

after Election Day.39 Sometimes, disclosure comes 

not merely too late, but never, because the mere 

threat or promise of an unlimited contribution 

achieves its goal with no reportable contribution—or 

because contributions are often routed through 

complex webs of front groups to obscure the linkage. 

 

37 See 11 CFR 104.3(a)(4) (requiring disclosure of 

expenditures and receipts in excess of $200).

38 See Karl Evers-Hillstrom, Super PACs outmaneuver 

outdated rules to leave voters in the dark, OpenSecrets (Mar. 

18, 2020), https://www.opensecrets.org/news/2020/03/sunshineweek-2020-super-pacs-loophole/; Dodging Disclosure 4,

Campaign Legal Center (Nov. 2018), https://campaign

legal.org/sites/default/files/2018-11/11-29-18%20Post-Election%

20Report%20%281045%20am%29.pdf (“[I]n the final weeks of 

the [2018] general election, over $29.3 million was spent by 17 

Super PACs that were newly created and had reported no 

contributors, or whose spending exceeded their last-reported 

cash-on-hand by 500 percent,” which did not need to be 

reported until after the election.)

39 Dodging Disclosure, supra note 38 at 4, 7, 9. 
 

 

22

In our view, this mischief is impossible to 

regulate or remediate. But it is possible to prevent, 

with contribution limits on money to “independent” 

groups. Covert threats, assurances or promises have 

little force when contributions are properly limited. 

Corrupting arrangements through elaborate 

intermediary screens are not worth constructing. 

There is a difference in kind between a fivethousand-dollar contribution and a five-milliondollar contribution—or the looming threat or 

promise of that five-million-dollar contribution. The 

worst of this mischief evaporates in a regime of 

sensible contribution limits. 

This Court also presumed that separation 

between campaigns and “independent” groups would 

“negate the possibility” of quid pro quo corruption 

from independent expenditures. 40 The decision in 

SpeechNow referenced this Court’s view that “[t]he 

absence of...coordination of an expenditure with the 

candidate...alleviates the danger that expenditures 

will be given as a quid pro quo.”41 However, the DC 

Circuit failed to recognize that this Court expressed 

 

40 See Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 564 U.S. 721, 751 (2011) (“The separation between 

candidates and independent expenditure groups negates the 

possibility that independent expenditures will result in the sort 

of quid pro quo corruption with which our case law is 

concerned.”) (citing Citizens United, 558 U.S. at 357–61).

41 SpeechNow.org, 599 F.3d at 693 (quoting Citizens 

United, 558 U.S. at 357).
 

 

23

that view in a context where contributions to 

“independent” organizations were limited, and thus 

there was little incentive for candidates and 

independent organizations to coordinate. 

Ten years of Super PACs authorized by 

SpeechNow have exposed the D.C. Circuit’s failure,

and this Court should correct it. Examples abound 

of coordination between campaigns and affiliated 

Super PACs, ranging from coordination performed 

through public channels, to candidates or surrogates 

appearing at affiliated fundraisers, to behind-thescenes campaign tactics that share resources and 

break supposed “firewalls.” 42 One example: both 

major candidates for President in 2020 officially 

“endorsed” a Super PAC supporting them.43 Does 

anyone seriously think candidates do not note who 

contributes to their private, endorsed, “independent” 

Super PAC?

 

42 See Adam Wollner, 10 Ways Super PACs and 

Campaigns Coordinate, Even Though They're Not Allowed To,

The Atlantic (Sept. 27, 2015), https://www.theatlantic.

com/politics/archive/2015/09/10-ways-super-pacs-and-campaignscoordinate-even-though-theyre-not-allowed-to/436866/. 

43 Ken Thomas, Biden Campaign Indicates Priorities USA 

Is Preferred Super PAC, Wall St. J. (Apr. 15, 2020), https://

www.wsj.com/articles/biden-campaign-indicates-priorities-usais-preferred-super-pac-11586986904 (noting the statement 

“sends a message to top donors about where they should give 

money”); Alex Isenstadt, Trump to appear at fundraiser for 

allied Super PAC, Politico (May 29, 2018), https://www.politico-

.com/story/2018/05/29/trump-fundraiser-super-pac-611594. 
 

 

24

It will not do to blame lax anti-coordination or 

disclosure rules. A campaign finance system that 

permits unlimited contributions, and in turn 

weaponizes private threats of those contributions by 

those wealthy enough to demand a candidate’s or 

elected official’s attention, will undermine any 

regulatory regime. At bottom, SpeechNow’s problem 

of unlimited contributions cannot be corrected by 

regulation. It must be treated at its source: the 

unlimited contributions. 

II. The Public’s Declining Faith in Our 

Democracy Is Evidence That Unlimited 

Contributions Give Rise to the Perception of 

Corruption. 

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. It is not just us—survey data confirm 

that Americans increasingly feel that government is 

corrupted and unrepresentative of ordinary citizens: 

77% of registered voters reported in September 2018 

that “reducing the influence of special interests and 

corruption in Washington” was either the “single 

most” or a “very important” issue.44 Super PACs lie 

 

44 NBC News/Wall Street Journal Survey, NBC News 12

(Sept. 19, 2018), http://media1.s-nbcnews.com/i/today/

z_creative/18955%20NBCWSJ%20September%20Poll.pdf; See 

also Widespread Government Corruption, Gallup (Sept. 19, 

2015), https://news.gallup.com/poll/185759/widespread-govern
 

 

25

at the heart of this concern; in 2012, nearly 70%

thought Super PACs should be illegal. 45 In 2018, 

72% of the public disagreed with the statement 

(pardon the double negative here) that “people who 

give a lot of money to elected officials do not have 

more influence than others.”46

This belief is well founded—studies show no 

correlation between what the public wants and what

the public gets; instead, the statistical correlation is

with what wealthy interests want. 47 One recent 

study found members of Congress over three times 

more likely to meet with a constituent if that 

constituent claims to be a donor. 48 Another study 

found that “senators are more responsive to the 

 

ment-corruption.aspx (75% of Americans “perceived corruption 

as widespread in the country’s government” in 2014). 

45 See 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.

46 Id.

47 See Martin Gilens, Affluence and Influence 7, 171-74

(2012) (demonstrating that responsiveness to the preferences of 

low and middle-income voters is virtually non-existent, 

particularly in non-election years, whereas responsiveness to 

the preferences of high-income voters almost always wins out).

48 See Joshua L. Kalla & David E. Broockman, Campaign 

Contributions Facilitate Access to Congressional Officials: A 

Randomized Field Experiment, 60 Am. J. of Pol. Sci. 545, 552 

tbl.1 (2016).
 

 

26

opinions of affluent constituents than of middle-class

constituents—and totally unresponsive to the 

opinions of poor constituents.”

49 More specifically,

“the views of constituents in the upper third of the

income distribution received about 50% more weight

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 decisions of their senators.”

50 

The public are not oblivious; people may not 

know exactly why, or how, but they assuredly know 

when they are not being heard. The D.C. Circuit’s 

incorrect application of Citizens United in 

SpeechNow creates precisely the conditions that 

justify Americans’ disenchantment.51 Based on our 

 

49 Larry M. Bartels, Economic Inequality and Political 

Representation 20 (Aug. 2005), http://citeseerx.ist.psu.edu/

viewdoc/download;jsessionid=33B7AA4E26A0F19D5A08B7AF9

069E25F?doi=10.1.1.172.7597&rep=rep1&type=pdf.

50 Id. at 4. 

51 This Court’s precedent focuses on corruption and the 

appearance thereof. Voters are rightly outraged about 

instances of quid pro quo corruption, and indeed that outrage 

can actually be galvanizing. In our experience as elected 

officials, however, the appearance of corruption no less sullies 

our American City upon a Hill. When the campaign finance 

system builds an Express Lane for only big and powerful 

donors, voters become disheartened that they will be unheard 

by the elected officials, and that disheartening effect feeds the 

appearance that every contribution and every interaction 
 

 

27

experience, unlimited contributions—and the 

inevitable threats and promises around such 

unlimited contributions—massively exacerbate this 

undemocratic miscorrelation. It stinks, and people 

know it.

Former Congressman Mick Mulvaney recently 

told an American Bankers Association conference: 

“We had a hierarchy in my office in Congress[.] If 

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.” 52 Imagine the attention a 

lobbyist capable of orchestrating multi-million-dollar 

Super PAC contributions would receive.

The influence of money in our democracy is 

obviously heightened when political spending is 

unlimited; but the influence problem is aggravated 

when political donations are unlimited. The absence 

of limits on contributions to Super PACs opens a 

world of unregulable threats and promises; it 

 

between a donor and a candidate or public official is a corrupt 

one. The SpeechNow regime creates this Express Lane, one 

for the already powerful and wealthy alone, and at great 

public cost. This regime serves a small subset of political 

interests that has both the economic means and political 

motive to subvert the democratic process.

52 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/mulvaneyconsumer-financial-protection-bureau.html. 
 

 

28

confounds the independence and transparency 

predicates of Citizens United; it gives a small set of 

participants disproportionate and undemocratic 

influence in American politics; it distorts election 

and policy outcomes; and it causes millions of 

ordinary Americans justifiably to lose faith in the 

political process. This fundamental threat to 

American democracy warrants review by the Court 

of this case to correct the holding in SpeechNow. 

CONCLUSION 

For the foregoing reasons, this Court should 

grant Petitioners’ petition for a writ of certiorari. 

Respectfully submitted,

GARY W. KUBEK

NORA NIEDZIELSKI-EICHNER

JOSHUA M. GOLDMAN

DEBEVOISE & PLIMPTON LLP

919 THIRD AVENUE

NEW YORK, N.Y. 10022

(212) 909–6000

DAVID A. O’NEIL

Counsel of Record

DEBEVOISE & PLIMPTON LLP

801 PENNSYLVANIA AVENUE N.W.

Washington, D.C. 20004

daoneil@debevoise.com

(202) 383–8000

Counsel for Amici Curiae