No. 19-1398 

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In The 

Supreme Court of the United States 

---------------------------------  --------------------------------- 

REPRESENTATIVE TED LIEU, et al., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

---------------------------------  --------------------------------- 

On Petition For Writ Of Certiorari 

To The United States Court Of Appeals 

For The District Of Columbia Circuit

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BRIEF FOR AMICI CURIAE

CHRISTOPHER T. ROBERTSON, KELLY 

BERGSTRAND, AND D. ALEXANDER WINKELMAN 

IN SUPPORT OF PETITIONERS

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RUSSELL B. PIERCE, JR. 

Counsel of Record 

CHRISTOPHER C. TAINTOR

NORMAN, HANSON & DETROY, LLC 

Two Canal Plaza 

P.O. Box 4600 

Portland, ME 04112 

(207) 774-7000 

rpierce@nhdlaw.com 

Counsel for Amici Curiae 

================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................. ii 

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

INTRODUCTION AND SUMMARY OF THE 

ARGUMENT ..................................................... 2 

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

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

 II. POTENTIAL IMPLICATIONS FOR CAMPAIGN FINANCE LAW ............................. 11 

CONCLUSION ..................................................... 13 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................... 3, 4, 5 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) ............................................... 4, 5 

SpeechNow.org v. Federal Election Commission, 

599 F.3d 686 (D.C. Cir. 2010) ................ 2, 3, 4, 11, 13 

United States v. Siegelman, 

640 F.3d 1159 (11th Cir. 2011) ................................ 12 

United States v. Sun-Diamond Growers 

of California, 

526 U.S. 398 (1999) ................................................... 5 

STATUTES

18 U.S.C. § 201 .............................................................. 5 

18 U.S.C. § 371 .............................................................. 5 

OTHER AUTHORITIES

Jessica L. Collett and Ellen Childs, “Minding 

The Gap: Meaning, Affect, and the Potential 

Shortcomings of Vignettes,” 40 Social Science 

Research (2011) ......................................................... 6 

Aaron Kesselheim, Christopher Robertson, et 

al., “A Randomized Study of How Physicians 

Interpret Research Funding Disclosures,” 369 

New England Journal of Medicine (Sept. 20, 

2012) .......................................................................... 6 
iii 

TABLE OF AUTHORITIES—Continued 

Page 

Michael S. Lewis-Beck, et al., “Vignette Technique,” The Sage Encyclopedia of Social Science Research Methods (2004) ................................. 6 

Christopher Robertson, D. Alexander Winkelman, 

Kelly Bergstrand, and Darren Modzelewski, 

“The Appearance and the Reality of Quid Pro 

Quo Corruption: An Empirical Investigation,” 

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

Geert M.J. Rutte, “Measuring physiotherapists’ 

guideline adherence by means of clinical vignettes: a validation study,” 12 Journal of Evaluation in Clinical Practice 491 (2006) ...................... 6 

D. Alexander Winkelman, et al., “An Empirical 

Method for Harmless Error,” 46 Ariz. St. L.J. 

1405 (2015) ................................................................ 6 
1 

INTEREST OF AMICI CURIAE1

Amici are scholars who have conducted empirical 

research about the appearance of quid pro quo corruption in the campaign finance context. Amici have no 

personal interest in the outcome of this case. Rather, 

Amici have a substantial professional interest in seeing that courts take account of relevant empirical research when evaluating the legality of campaign 

finance regulation. 

 Christopher Robertson conducted this work while 

Associate Dean for Research and Innovation and Professor of Law at the University of Arizona; he is now 

N. Neal Pike Scholar and Professor of Law at Boston 

University.1 He is affiliated faculty with the Petrie 

Flom Center for Health Care Policy, Bioethics and 

Biotechnology at Harvard University, and conducted 

this work with the support of the Institutional Corruption Lab of the Edmond J. Safra Center for Ethics at 

Harvard University.2

1 In accordance with Supreme Court Rule 37, amici curiae

state that no counsel for a party authored this brief, in whole or 

in part, and no counsel or party made a monetary contribution to 

fund the preparation or submission of this brief. No person other 

than the amici curiae and their counsel made any monetary contribution to its preparation and submission. Pursuant to Supreme 

Court Rule 37.2, counsel of record for all parties received timely 

notice of amici curiae’s intent to file and have consented to the 

filing of this brief. 

2 Institutional affiliations are provided for identification purposes only. Amici write in their individual capacities; their views 

are not necessarily held by their employers. 
2 

 Kelly Bergstrand is an Assistant Professor of Sociology at the University of Texas at Arlington and 

earned masters and doctoral degrees in sociology from 

the University of Arizona. 

 D. Alexander Winkelman graduated from the 

James E. Rogers College of Law at the University of 

Arizona and contributed to the scholarly work discussed in this brief while a fellow there. He is now an 

attorney in private practice. 

 This brief is based on Amici’s prior work appearing in the Journal of Legal Analysis, a peer-reviewed 

journal published by Oxford University Press and edited at Harvard Law School.3

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INTRODUCTION AND 

SUMMARY OF THE ARGUMENT 

 The Petitioners asked the D.C. Circuit to reconsider its decision in SpeechNow.org v. Federal Election 

Commission, 599 F.3d 686 (D.C. Cir. 2010), which gave 

rise to Super PACs and similar independent expenditure organizations. The Court in SpeechNow recognized that the “appearance of corruption” could justify 

campaign finance regulation under Supreme Court 

precedent. Id. at 692. But the Court went on to state 

that, “[i]n light of the [Supreme] Court’s holding as a 

3 Christopher Robertson, D. Alexander Winkelman, Kelly 

Bergstrand, and Darren Modzelewski, “The Appearance and the 

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

Journal of Legal Analysis 375-438 (2018). 
3 

matter of law that independent expenditures do not 

corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures”—like SuperPACs—“also cannot 

corrupt or create the appearance of corruption.” Id. at 

694. Amici’s empirical research strongly suggests 

otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in 

fact create the appearance of quid pro quo corruption. 

In light of this empirical research, the Court should 

grant certiorari so that the Court may consider 

whether the Court of Appeals correctly decided SpeechNow. 

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ARGUMENT 

I. STUDY DESIGN AND RESULTS4

 The Supreme Court has long recognized in the 

campaign finance context that the government has a 

strong interest in avoiding the appearance of quid pro 

quo corruption because “the avoidance of the appearance of improper influence is . . . critical if confidence 

in the system of representative Government is not to 

be eroded to a disastrous extent.” Buckley v. Valeo, 424 

U.S. 1, 27 (1976) (internal brackets and quotation 

4 This summary description of Amici’s study design and findings is necessarily incomplete. For a complete overview of study 

design, results, caveats, and conclusions, see Robertson, et al., 

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

Empirical Investigation.” 
4 

marks omitted). At the heart of this case is an empirical question: whether contributions to independent expenditure organizations give rise to an appearance of 

quid pro quo corruption. Whether or not a particular 

practice creates an “appearance” of corruption is a 

question that can only be answered by analyzing evidence of how the practice is actually perceived by informed citizens. This Court has “never accepted mere 

conjecture as adequate to carry a First Amendment 

burden.” Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377, 392 (2000). Furthermore, “[t]he quantum 

of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or 

down with the novelty and plausibility of the justification raised.” Id. at 391.5

 Until now, however, this Court 

has not had reason to receive empirical evidence of the 

extent to which large contributions to independent expenditure organizations are perceived as corrupt. 

 Through two investigations, Amici have developed 

a systematic and reliable approach to analyzing the 

relationship between contributions to independent 

5 Treating this as an empirical question is consistent with 

this Court’s treatment of independent expenditure limits. This 

Court has long policed a distinction between expenditures and 

contributions. Compare Buckley, 424 U.S. at 27 (relying on empirical evidence of the risk of quid pro quo corruption and its appearance to uphold contribution limits); with id. at 45-46 (holding 

that independent expenditures do not give rise to corruption or 

its appearance); see also SpeechNow, 599 F.3d at 694 (noting that 

the Court’s independent expenditure decisions have relied on a 

lack of “evidence” that independent expenditures “lead to, or create the appearance of, quid pro quo corruption” (emphasis 

added)). 
5 

expenditure organizations and the appearance of corruption. These investigations reveal that large contributions to Super PACs do give rise to the appearance 

of an illegal quid pro quo arrangement. 

 In both investigations, mock jurors were asked to 

determine whether various campaign finance fact patterns met the standard for quid pro quo corruption under the federal bribery statutes, see 18 U.S.C. §§ 201, 

371.6 Investigations of this sort are called vignettebased experiments, meaning that respondents are 

asked to imagine themselves in a certain role (here, as 

grand or petit jurors) and then to decide what they 

would do in that role (here, whether to indict or convict). This method has become a common tool in a 

range of scientific and practical fields including 

6 Bribery is the classic example of a “quid pro quo” arrangement. United States v. Sun-Diamond Growers of California, 526 

U.S. 398, 404–05 (1999) (“[F]or bribery there must be a quid 

pro quo—a specific intent to give or receive something of value 

in exchange for an official act.”). “But laws making criminal the 

giving and taking of bribes deal with only the most blatant and 

specific attempts of those with money to influence governmental 

action.” Buckley v. Valeo, 424 U.S. at 27-28. Because the “interests of preventing corruption and the appearance of it” 

which underlie the bribery statutes are the very same interests 

that animate campaign finance laws, Nixon v. Shrink Missouri 

Gov’t PAC, 528 U.S. 377, 390 (2000), campaign contributions 

that are perceived by the public as violating the federal bribery 

statutes—whether those contributions are made directly to 

candidates or to Super PACs, which in turn spend the money 

to support candidates—unquestionably give “the appearance of 

corruption.” 
6 

sociology, psychology, business, and health sciences.7

Vignette-based experiments are now published in 

leading scientific journals and are regularly used to 

predict real-world behaviors.8

 The first investigation—the “Grand Jury Simulation”—depicted a case typical to everyday politics in 

the United States, in which a corporation sought to 

have a deregulatory rider added to a major piece of legislation, and a U.S. representative sought support for 

his re-election. After the corporation’s CEO authorized 

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

independent expenditure organization similar to a 

SuperPAC—that was supportive of the representative’s re-election, the representative expressed a willingness to study and promote the company’s interests, 

and the representative ultimately sponsored the deregulatory rider. Subsequently, both the corporation’s 

CEO and the representative were charged under the 

7 See generally Michael S. Lewis-Beck, et al., “Vignette Technique,” The Sage Encyclopedia of Social Science Research Methods 

(2004); Jessica L. Collett and Ellen Childs, “Minding The Gap: 

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

Social Science Research 513 (2011) (listing these fields in particular); see also Geert M.J. Rutte, “Measuring physiotherapists’ 

guideline adherence by means of clinical vignettes: a validation 

study,” 12 Journal of Evaluation in Clinical Practice 491 (2006) 

(concluding that vignettes are of acceptable validity for predicting 

real-world behavior); D. Alexander Winkelman, et al., “An Empirical Method for Harmless Error,” 46 Ariz. St. L.J. 1405 (2015) 

(summarizing this and other literature). 

8 See, e.g., Aaron Kesselheim, Christopher Robertson, et al., 

“A Randomized Study of How Physicians Interpret Research 

Funding Disclosures,” 369 New England Journal of Medicine 

1119 (Sept. 20, 2012). 
7 

federal bribery statute. The simulation materials included a recorded charge from a federal judge, excerpts 

from the federal grand juror manual, and realistic indictments and true bill forms. An experienced prosecutor presented the case along with live actors portraying 

the witnesses, and study participants were allowed to 

question the witnesses live. 

 After being exposed to this stimulus, the group of 

45 mock jurors were broken into three grand juries of 

fifteen each. The study left it to the jurors to determine 

whether the indirect expenditure was a cause of the 

representative’s newfound interest in the deregulatory 

legislation, and whether, if so, this connection satisfied 

the quid pro quo elements of the federal bribery statute. Across all 45 grand jurors, 73% voted to indict the 

defendants.9 Put differently, a majority of these grand 

jurors determined that a contribution to an independent expenditure organization could support federal 

bribery charges, even where the defendants had never 

met in person, and even where there was no direct evidence of an explicit agreement to make a quid pro quo

exchange. 

 To more systematically investigate these questions, 

Amici also conducted a much larger experiment—the 

“Online Experiment”—which used a national online 

sample to review participants’ responses to variations 

on the same basic fact pattern as in the Grand Jury 

9 Confidence Interval: 58%-85% 
8 

Simulation.10 Each survey participant was presented 

with a short stimulus based on one of five variations. 

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

closing arguments by both the prosecutor and the defense attorney, and jury instructions adapted from 

the pattern jury instructions for the federal crime of 

bribery. After reading this stimulus, respondents were 

asked to fill out a verdict form that posed a binary 

choice of guilty or not guilty on the charge of bribery 

for each defendant. Respondents were then asked 

about their degree of confidence in their verdict, as well 

as a battery of other questions about the specific variation the respondent had reviewed, for example, 

whether the respondent had found an explicit or implicit agreement. 

 Three factual variations are particularly relevant 

to this case. In the first relevant variation (the “PROWEAK condition”), the representative and CEO simply 

had background knowledge about their reciprocal interests and acted accordingly, without any direct or indirect contact between the parties. The representative 

introduced the rider, and the CEO made a direct contribution to the candidate’s campaign or leadership 

PAC. 

 In the second relevant variation (the “PROLOBBY condition”), a lobbyist engaged the two parties 

10 The sample consisted of 1276 jury-eligible respondents 

from an online sample provided by Qualtrics, balanced to be representative of the United States census population on gender, 

age, and political affiliation. 
9 

and persuaded them to act in accordance with each 

other’s interests. In particular, the lobbyist suggested 

to both parties that he believed that “the Representative would push through the amendment if ” the CEO 

gave some quid, and that the CEO would be “more 

likely to act favorably if the Representative proposed 

the hospital equipment amendment.” Importantly, 

these were the lobbyist’s predictions about the likely 

effects of each party’s behavior on the other’s behavior, 

not the parties’ commitments to each other. In this variation, the company gave a $250,000 contribution to an 

independent 501(c)(4) organization that was working 

to support the representative’s re-election, and the representative sponsored the rider. 

 Finally, in the third relevant variation (the “PROSTRONG condition”), the parties met and discussed 

their mutual interests, and explicitly agreed that the 

company would make a direct contribution in exchange for the official action. This condition was intended as a benchmark for what is indisputably quid 

pro quo corruption. 

 In the PRO-WEAK condition, 43% of respondents 

were willing to convict at least one of the defendants, 

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

somewhat agree, agree or strongly agree) that the representative and CEO had corrupt intent. Six-in-ten 

(59%) thought that money influenced the representative’s decision to introduce the rider, while about half 

thought that what occurred is (44%) or should be (58%) 

a crime. Further, even with no direct or indirect contact between the CEO and representative, 39% of 
10 

respondents thought there was an agreement, and 35% 

believed the agreement was explicit. 

 In the PRO-LOBBY condition, more than three 

quarters (77%) of respondents voted to convict, which 

was dramatically higher than in the PRO-WEAK condition. Strikingly, the conviction rate in the PROLOBBY condition was close to the 84% rate in the 

benchmark PRO-STRONG condition—indeed, there 

was no statistically significant difference (p=.48) between the likelihood that participants in each of these 

conditions would vote to convict. Thus, participants 

were nearly as likely to convict where the parties’ relationship was through an intermediary and the contribution was indirect—as in the PRO-LOBBY 

condition—compared to where the relationship and 

contribution were both direct, as in the PRO-STRONG 

condition. Additionally, in the PRO-LOBBY condition, 

three quarters (78%/79%, respectively) of respondents 

agreed that the representative and CEO had corrupt 

intent, 81% of respondents felt that the contribution 

influenced the representative, and overwhelming majorities thought that what occurred is (77%) or should 

be (83%) a crime. Thus, a strong majority of respondents condemned the type of exchange described in the 

PRO-LOBBY condition, even though it involved a contribution to an independent expenditure organization 

and no direct communication between the parties.11

11 Even with the lobbyist as a go-between, 70% believed that 

the representative and CEO had reached an agreement, with 57% 

viewing the agreement as explicit. 
11 

 The Grand Jury Simulation’s rich stimulus and 

extensive in-person deliberations contrast with the 

Online Experiment’s large and representative base of 

participants and varied fact patterns, creating what 

scientists call “convergent validity.” And the two experiments tell a coherent story. Both found strong evidence that contributions to independent expenditure 

organizations are perceived as supporting federal bribery charges. In other words, they give rise to an appearance of corruption. Potentially more significant, the 

Online Experiment found evidence that it made little 

difference whether the “quid” was a direct contribution 

to a campaign or a contribution to an independent expenditure organization like a SuperPAC—in both versions, the contribution gave rise to the appearance of 

an illegal quid pro quo arrangement. 

II. POTENTIAL IMPLICATIONS FOR CAMPAIGN FINANCE LAW. 

 These results call the D.C. Circuit’s decision in 

SpeechNow into substantial question. If, as appears to 

be the case, a contribution to a SuperPAC can give rise 

to the same appearance of corruption as a direct contribution to a campaign account, then this Court’s 

longstanding “appearance of corruption” rationale for 

campaign finance regulation would appear to justify 

regulation of contributions to independent expenditure organizations as well as regulation of direct contributions to candidates and candidate leadership 

PACs. Importantly, the “appearance of corruption” rationale does not depend on whether a court agrees with 
12 

the assessments of the grand and petit jurors that the 

facts as presented in Amici’s experiments constitute 

bribery. What matters for purposes of this rationale is 

public perception, and the protection of democratic legitimacy. Based on the results described above, contributions to independent expenditure organizations may 

substantially threaten these interests—even if, as this 

Court has held, independent expenditures themselves 

do not. 

 Moreover, these results have potentially concerning implications for the interaction between federal 

criminal law and campaign finance regulation. If jurors are willing to indict and convict based on the 

facts described above, then politically motivated, selective prosecutions might take the place of reasoned 

campaign finance policymaking. This concern is far 

from hypothetical. Former Alabama Governor Don 

Siegelman went to prison for, among other things, soliciting a contribution to an independent political 

group that was advocating for the establishment of a 

state lottery to fund an education initiative, in exchange for a political appointment to a state board. 

United States v. Siegelman, 640 F.3d 1159, 1169-70 

(11th Cir. 2011). This behavior is not unlike what many 

other politicians likely do on a regular basis: donors to 

SuperPACs and similar groups routinely expect that 

politicians will pay particular attention to their discrete interests. Rather than relying on the criminal 

law to weed out the most extreme quid pro quos—with 

likely inequitable results—states and the federal government should be permitted to regulate the indirect 
13 

contributions that create the appearance of quid pro 

quo corruption in the first place. 

 In sum, almost a decade after the SpeechNow decision, the influence of independent expenditure organizations on American politics is impossible to ignore. 

Given the overwhelming evidence—including the empirical evidence described in this brief—that contributions to independent expenditure organizations give 

rise to corruption and its appearance, the Court should 

grant a writ of certiorari and entertain Petitioners’ 

challenge to SpeechNow. 

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CONCLUSION 

 For the foregoing reasons, as well as the reasons 

outlined in the Petition for a Writ of Certiorari, Amici

respectfully request that the Court grant the writ 

sought by the Petitioners. 

July 21, 2020 Respectfully submitted, 

RUSSELL B. PIERCE, JR. 

Counsel of Record 

CHRISTOPHER C. TAINTOR

NORMAN, HANSON & DETROY, LLC 

Two Canal Plaza 

P.O. Box 4600 

Portland, ME 04112 

(207) 774-7000 

rpierce@nhdlaw.com