No. 12-536 

================================================================ 

In The 

Supreme Court of the United States 

--------------------------------- i --------------------------------- 

SHAUN MCCUTCHEON, ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

--------------------------------- i --------------------------------- 

On Appeal From The United States District Court 

For The District Of Columbia 

--------------------------------- i --------------------------------- 

BRIEF OF AMICI CURIAE COMMUNICATIONS 

WORKERS OF AMERICA, GREENPEACE, NAACP, 

SIERRA CLUB, AMERICAN FEDERATION OF 

TEACHERS, MAIN STREET ALLIANCE, 

OURTIME.ORG, PEOPLE FOR THE AMERICAN 

WAY FOUNDATION, ROCK THE VOTE, U.S.PIRG, 

WORKING FAMILIES ORGANIZATION 

AND DŘMOS IN SUPPORT OF APPELLEE 

--------------------------------- i --------------------------------- 

ELIZABETH KENNEDY

ADAM LIOZ

DŘMOS

220 Fifth Ave. 

2nd Floor 

New York, NY 10001 

(212) 633-1405

BRENDA WRIGHT

Counsel of Record

DŘMOS

358 Chestnut Hill Ave. 

Suite 303 

Brighton, MA 02135 

(617) 232-5885 

bwright@demos.org

Counsel for Amici Curiae 

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

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................. iv 

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

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

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

 I. AGGREGATE CONTRIBUTION LIMITS 

ARE A LONGSTANDING MEASURE TO 

MEET THE GOVERNMENT’S RESPONSIBILITY TO FIGHT THE REALITY AND 

APPEARANCE OF CORRUPTION ........... 4 

A. Aggregate contribution limits fight 

the reality and appearance of corruption without unduly burdening the 

exercise of a constitutional right ......... 5 

B. Government has a compelling interest in fighting the reality and appearance of corruption to protect the 

integrity of democratic governance ..... 7 

 II. THE EROSION OF PUBLIC CONFIDENCE IN GOVERNMENT STEMMING 

FROM CONTRIBUTIONS THAT CREATE THE APPEARANCE OF CORRUPTION IS A SERIOUS, AND NOT A 

SPECULATIVE, CONCERN ..................... 12 

A. Americans’ confidence in government 

is at an all-time low ............................. 13 
ii 

TABLE OF CONTENTS – Continued 

Page 

B. Americans believe their elected representatives are more responsive to 

financial supporters than to constituents or the public interest ................... 15 

C. Americans believe that government’s 

differential response to wealthy donors is caused by the corrupting influence of large contributions .............. 18 

 III. AMERICANS’ CONCERNS ABOUT 

DONORS’ IMPROPER INFLUENCE 

OVER GOVERNMENT ARE JUSTIFIED 

AND NOT SPECULATIVE ........................ 22 

A. The policy preferences of those who 

can make large donations differ 

greatly from those of ordinary Americans ...................................................... 23 

B. The largest contributors already dominate the funding of U.S. elections ...... 27 

C. Public policy outcomes in the U.S. are 

strongly responsive to the preferences 

of the affluent, even when those preferences diverge markedly from those 

of the general public ............................ 32 

 IV. STRIKING THE AGGREGATE LIMITS 

WILL INCREASE THE DANGER OF 

CORRUPTION AND AGGRAVATE THE 

APPEARANCE OF CORRUPTION ........... 37 

CONCLUSION ..................................................... 41 
iii 

TABLE OF CONTENTS – Continued 

Page 

APPENDIX 

ORGANIZATIONAL DESCRIPTIONS OF 

AMICI CURIAE ...................................................... 1a 
iv 

TABLE OF AUTHORITIES 

Page 

CASES

Beaumont v. FEC, 539 U.S. 146 (2002) ................. 6, 40 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) .... passim

California Medical Ass’n v. FEC, 453 U.S. 182 

(1981) ....................................................................... 10 

Citizens Against Rent Control v. Berkeley, 454 

U.S. 290 (1981) ........................................................ 36 

Citizens United v. FEC, 558 U.S. 310 (2010) ... 11, 15, 32 

FEC v. Colo. Republican Fed. Campaign 

Comm. (Colorado II), 533 U.S. 431 (2001) ........... 8, 9 

FEC v. National Right to Work Comm., 459 

U.S. 197 (1982) ........................................................ 10 

FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985) ................................... 17 

FEC v. Colorado Federal Campaign Comm., 

533 U.S. 431 (2001) ............................................... 8, 9 

McConnell v. FEC, 251 F. Supp. 2d 176 

(D.D.C.), aff ’d in part, rev’d in part, 540 U.S. 

93 (2003) .................................................................. 31 

McConnell v. FEC, 540 U.S. 93 (2003) ............... passim

McCutcheon v. FEC, 893 F. Supp. 2d 133 

(D.D.C. 2012) ......................................................... 6, 7 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000) ................................................................. 12, 16 
v 

TABLE OF AUTHORITIES – Continued 

Page 

U.S. Civil Service Comm’n v. Nat’l Ass’n of 

Letter Carriers, AFL-CIO, 413 U.S. 548 

(1973) ....................................................................... 38 

STATUTES, REGULATIONS, AND RULES

2 U.S.C. § 441a(a)(3) (2011) ...................................... 4, 5 

76 Fed. Reg. 8,370 (Feb. 14, 2011) ............................... 4 

Federal Election Campaign Act of 1971, Pub. L. 

No. 92-225, 86 Stat. 3 ........................................... 5, 8 

Pub. L. No. 107-155, § 307, 116 Stat. 81 (2002) .... 5, 11, 12 

ADMINISTRATIVE OPINIONS, RULEMAKINGS, AND NOTICES

FEC, Price Index Adjustments for Contribution 

and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, Notice 2013-

03, 78 Fed. Reg. 8,530 (Feb. 6, 2013) ....................... 4 

OTHER AUTHORITIES

Am. Nat’l Election Studies, The ANES Guide to 

Public Opinion and Electoral Behavior (last 

visited July 12, 2013) ........................................ 14, 38 

Am. Nat’l Election Studies, User’s Guide and 

Codebook for the Preliminary Release of the 

ANES 2012 Time Series Study (July 1, 2013) .... 14, 38 

Larry M. Bartels, Unequal Democracy: The 

Political Economy of the New Gilded Age

(2008) ....................................................................... 35 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

Paul Blumenthal, Chris Murphy: ‘SoulCrushing’ Fundraising Is Bad for Congress, 

Huffington Post (May 7, 2013, 5:40 PM) ................ 30 

Brennan Ctr. for Justice, National Survey: 

Super PACs, Corruption, and Democracy

(Apr. 24, 2012) ......................................................... 16 

David Callahan & J. Mijin Cha, Stacked Deck: 

How the Dominance of Politics by the Affluent and Business Undermines Economic Mobility in America, DƝmos (2013) ....................... 25, 35 

Center for Responsive Politics, Donor Demographics, OpenSecrets.Org ................................ 28 

Common Cause, Fair Elections Poll, Money in 

Politics (Feb. 2009) .................................................. 20 

Lee Drutman, Sunlight Foundation, The Political 1% of the 1% in 2012, Sunlight Foundation Blog (June 24, 2013, 9:00 AM) ............ 27, 28, 30 

Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in 

America (2012) ................................ 26, 33, 34, 35, 36 

John Green, et al., Individual Congressional 

Campaign Contributors: Wealthy, Conservative, and Reform-Minded (1998) ............................. 29 

Greenberg Quinlan Rosner Research, Money in 

Politics is a Ballot Box Issue, Democracy 

Corps Nat’l Surveys (May 9, 2012) ................... 20, 39 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

Greenberg Quinlan Rosner Research, Voters 

Push Back against Big Money Politics, Democracy Corps Nat’l Surveys (Nov. 13, 2012) ........ 17 

Samuel Issacharoff, On Political Corruption, 

124 Harv. L. Rev. 118 (2010) ............................. 18, 19 

Liz Kennedy, Citizens Actually United: The 

Overwhelming, Bi-Partisan Opposition to 

Corporate Political Spending and Support for 

Achievable Reforms, DƝmos (Oct. 25, 2012) ..... 15, 20 

Adam Lioz & Blair Bowie, Billion Dollar 

Democracy: The Unprecedented Role of Money in the 2012 Elections, DƝmos (2013) ............ 27, 28 

Mem. of Campaign Legal Center & Democracy 

21 as Amici Curiae in Opp’n Pls.[’] Mot. 

Prelim. Inj., McCutcheon v. FEC, 893 

F. Supp. 2d 133 (D.D.C. 2012) (No. 

12cv1034(JEB)(JRB)(RLW)) ..................................... 7 

Memorandum from Celinda Lake et al., Lake 

Research Partners & Brian Nienaber & Ashlee Rich, Tarrance Group, Nationwide Poll 

Results on Economic Recovery – January 

2009 (Feb. 1, 2009) ............................................ 16, 19 

Elizabeth Mendes & Joy Wilke, Gallup, Americans’ Confidence in Congress Falls to Lowest 

on Record, Gallup Poll (June 13, 2013) .................. 14 

Merits Brief of the Appellee, McCutcheon v. 

FEC, No. 12-536, 2013 WL 3773847 ........................ 6 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

Benjamin I. Page et al., Democracy and the 

Policy Preferences of Wealthy Americans, 11 

Persp. On Pol. 51 (2013) ................. 24, 25, 26, 28, 29 

Susan Page, Why 90 Million Americans Won’t 

Vote in November, USA Today, Aug. 15, 2012 ........ 37 

Nathaniel Persily & Kelli Lammie, Perceptions 

of Corruption and Campaign Finance: When 

Public Opinion Determines Constitutional 

Law, 153 U. Penn. L. Rev. 119 (2004) .................... 21 

Robert Post, Campaign Finance Regulation 

and First Amendment Fundamentals, in 

Money, Politics, and the Constitution: Beyond 

Citizens United (M. Youn, ed. 2011) ....................... 13 

Public Campaign, Color of Money: The 2004 

Presidential Race (2004) ......................................... 29 

Martin Schram, Speaking Freely: How Congress is Compromised in the Great Money 

Chase, Center for Responsive Politics (1995) ......... 18 

Molly J. Walker-Wilson, Financing Elections 

and “Appearance of Corruption”: Citizen Attitudes and Behavior in 2012 (St. Louis Univ. 

Legal Studies Research Paper Series, No. 

2013-14, 2013) ......................................................... 21 
1 

INTEREST OF AMICI CURIAE

This brief is filed on behalf of amici curiae Communications Workers of America, Greenpeace, NAACP, 

Sierra Club, the American Federation of Teachers, 

Main Street Alliance, OurTime.org, People for the 

American Way Foundation, Rock the Vote, U.S.PIRG, 

the Working Families Organization, and Dřmos. 

Amici collectively represent millions of Americans 

who are concerned about the effect of large campaign 

contributions on the integrity and responsiveness of 

the United States government. A description of each 

amicus is included in an Appendix to this Brief.1

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SUMMARY OF ARGUMENT 

This Court has long grounded its campaign 

finance jurisprudence on the government’s compelling 

interest in fighting corruption or its appearance. 

Fighting the perception and the reality of a democratic government corrupted by the improper influence of 

financial support, however, is more than just a compelling reason for regulation; it is a responsibility of 

any democratic government. Legitimacy – the belief 

1

 Pursuant to Rule 37.6, no counsel for a party authored 

this brief in whole or in part, and no counsel or party made a 

monetary contribution intended to fund the preparation or 

submission of this brief. No person or entity other than amici 

curiae has made a monetary contribution to the preparation or 

submission of this brief. The written consents of the parties to 

the filing of this brief have been filed with the Clerk. 
2 

by the people that they are fairly represented – after 

all, is a first principle of democratic governance. 

 Aggregate contribution limits function in tandem 

with base contribution limits to protect the legitimacy 

of our democratic government by combatting the 

perception and reality of corruption. See infra Point I. 

Aggregate limits ensure that no one donor can find 

ways to funnel hundreds of thousands of dollars to a 

candidate or a party, and candidates and officeholders 

cannot solicit huge sums from a single donor – which 

evidence suggests would foster a belief among the 

public that elected officials are improperly influenced 

by such large contributions. At the same time, contribution limits impose only an indirect burden on 

speech and thus are not subject to strict scrutiny. For 

these reasons, this Court upheld aggregate contribution limits in Buckley v. Valeo, 424 U.S. 1 (1976) (per 

curiam), and has had no cause to reconsider this 

sound principle. 

 Appellants ask this Court to overrule settled 

precedent regarding contribution limits at a particularly inopportune time, because even with these 

limits in place public confidence in U.S. government 

is by some measures at an all-time low. Public opinion 

data demonstrate that this lack of confidence in 

government is tied to the widespread perception that 

government is more responsive to financial supporters than to voters or the public interest, and is corrupted by the improper influence of money in 

campaigns. See infra Point II. 
3 

 Recent political science research has demonstrated more clearly than ever before that this public 

concern is not speculative or irrational but rather 

quite closely tethered to reality. See infra Point III. 

Campaign funding has long been the province of large 

donors, but the near-dominance of a tiny fraction of 

the U.S. population over contributions to federal 

candidates has escalated in recent years. Important 

new research has documented that the wealthy have 

starkly different policy priorities than the general 

public, especially on economic issues, and that government in the U.S. responds differentially – often 

dramatically so – to the preferences of those who are 

able to make large campaign contributions, even 

when these preferences run counter to those of the 

general public. This particularly affects communities 

of color, which are far less likely to be represented 

among the ranks of those whose policy preferences 

appear to influence officeholders. Campaign finance 

is a significant factor in this dynamic. 

 Striking aggregate contribution limits will exacerbate problems of corruption and its appearance. See 

infra Point IV. Without these limits, a small cadre of 

donors will be able to contribute millions of dollars to 

candidates, parties, and political action committees, 

and candidates and officeholders will be permitted to 

solicit large sums from potential donors, functionally 

reviving the “soft money” system that Congress acted 

to end a mere 11 years ago. This will provide further 

(and renewed) incentive for federal candidates and 

officeholders to grant these donors improper influence, 
4 

skewing policy outcomes more and more towards the 

preferences of donors as opposed to those of the 

general public. 

 Perceptions of corruption are already at dangerous levels in the United States. These perceptions are 

not irrational fears but rather reasoned reactions to a 

system that is more responsive to the policy preferences of a narrow segment of the electorate as a 

result of the improper influence gained through 

large financial contributions. This Court must not 

risk undermining the legitimacy of our Republic by 

overturning longstanding precedent to strike a key 

bulwark against the reality and appearance of corruption of our democratic government. 

--------------------------------- i ---------------------------------

ARGUMENT 

I. AGGREGATE CONTRIBUTION LIMITS 

ARE A LONGSTANDING MEASURE TO 

MEET THE GOVERNMENT’S RESPONSIBILITY TO FIGHT THE REALITY AND 

APPEARANCE OF CORRUPTION. 

Appellants challenge the aggregate biennial limit 

that currently caps the total that an individual can 

contribute to all federal candidates, parties, and 

committees combined at $123,200. See 2 U.S.C. 

§ 441a(a)(3) (2011); 76 Fed. Reg. 8,370 (Feb. 14, 2011); 

FEC, Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling 

Disclosure Threshold, Notice 2013-03, 78 Fed. Reg. 
5 

8,530, 8,532 (Feb. 6, 2013). The $123,200 aggregate 

limit is broken down between a $48,600 ceiling on 

contributions to all federal candidates and their 

committees, and a $74,600 limit on contributions to 

all other committees (including no more than $48,600 

to committees other than national party committees). 

2 U.S.C. § 441a(a)(3). These limits are needed to 

ensure that donors cannot circumvent the complementary limits on contributions to individual candidates, parties and committees, and to serve the longrecognized governmental interest in deterring “the 

reality or appearance of improper influence stemming 

from the dependence of candidates on large campaign 

contributions.” Buckley, 424 U.S. at 58. 

A. Aggregate contribution limits fight the 

reality and appearance of corruption 

without unduly burdening the exercise of a constitutional right. 

Congress adopted base and aggregate contribution limits in the 1974 Amendments to the Federal 

Election Campaign Act of 1971 (FECA), which were 

upheld in Buckley. Federal Election Campaign Act of 

1971, Pub. L. No. 92-225, 86 Stat. 3. Though details of 

the protections have changed, their purpose to fight 

the reality and appearance of corruption has not. 

 Appellants challenge the aggregate contribution 

limits adopted in the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”). Pub. L. No. 107-155, § 307, 116 

Stat. 81, 102-03 (2002). The court below upheld them, 
6 

finding that without the aggregate limits, “an individual might contribute $3.5 million to one party and 

its affiliated committees in a single election cycle.” 

McCutcheon v. FEC, 893 F. Supp. 2d 133, 135 (D.D.C. 

2012). 

 In Buckley, the Court determined that “[w]hile 

contributions may result in political expression if 

spent by a candidate or an association . . . , the transformation of contributions into political debate involves speech by someone other than the contributor.” 

Buckley, 424 U.S. at 20-21. Hence, the aggregate 

contribution limits entail only a marginal restriction 

upon First Amendment rights, and thus this “quite 

modest restraint,” id. at 38, is subject to less exacting 

scrutiny than is a limit on expenditures. This core 

distinction between limits on expenditures and limits 

on contributions has remained at the heart of this 

Court’s campaign finance jurisprudence since Buckley. See, e.g., Beaumont v. FEC, 539 U.S. 146, 162 

(2002) (“[A] contribution limit involving significant 

interference with associational rights passes muster 

if it satisfies the lesser demand of being closely drawn 

to match a sufficiently important interest.” (internal 

quotation marks omitted)).2 Appellant McCutcheon 

2

Amici agree with, and do not further address here, the 

FEC’s argument that Appellants have presented no sound 

justification for the Court to overrule Buckley by applying strict 

scrutiny to the contribution limits challenged in this case. See 

Merits Brief of the Appellee at 25-31, McCutcheon v. FEC, No. 

12-536, 2013 WL 3773847. 
7 

can exercise his associational rights by contributing 

money to as many candidates as he likes, and is not 

barred from giving to any candidate, party, or committee. He merely has to abide by clear total ceilings 

on contributions because Congress has determined 

that aggregate limits are important to fight the 

reality and appearance of corruption and to prevent 

circumvention of the base limits. 

 In McConnell v. FEC, 540 U.S. 93 (2003), this 

Court upheld a ban on “soft money” contributions to 

political parties precisely because of the importance 

of effective contribution limits to fighting corruption 

and its appearance. The aggregate limits at issue in 

this case serve the same function – namely, preventing the inevitable reality and appearance of corruption when candidates and officeholders solicit 

huge sums from individuals with particular policy 

agendas, and when such individuals are permitted to 

funnel contributions well over base limits to key 

officeholders or party leaders. See Mem. of Campaign 

Legal Center & Democracy 21 as Amici Curiae in 

Opp’n Pls.[’] Mot. Prelim. Inj. at 6-9, McCutcheon v. 

FEC, 893 F. Supp. 2d 133 (D.D.C. 2012) (No. 

12cv1034(JEB)(JRB)(RLW)). 

B. Government has a compelling interest 

in fighting the reality and appearance 

of corruption to protect the integrity 

of democratic governance. 

Contribution limits protect against quid pro quo

corruption and the appearance thereof. As the Court 
8 

has continuously recognized, rules to fight the reality 

and appearance of corruption are necessary to protect 

the integrity of democratic government and the 

interests of its citizens. “Our cases have made clear 

that the prevention of corruption or its appearance 

constitutes a sufficiently important interest to justify 

political contribution limits.” McConnell v. FEC, 540 

U.S. at 143. The Court has consistently cited the 

danger that large contributions pose to representative 

government, recognizing that “[t]o the extent that 

large contributions are given to secure a political quid 

pro quo from current and potential officeholders, the 

integrity of our system of representative democracy is 

undermined.” Buckley, 424 U.S. at 26-27; see also 

FEC v. Colo. Federal Campaign Comm. (Colorado II), 

533 U.S. 431, 440-41 (2001) (“[L]imits on contributions are more clearly justified by a link to political 

corruption than limits on other kinds of . . . political 

spending are.”). 

 The Court has written “ . . . the primary interest 

served by the limitations . . . is the prevention of 

corruption and the appearance of corruption spawned 

by the real or imagined coercive influence of large 

financial contributions on candidates’ positions and 

on their actions if elected to office.” Buckley, 424 U.S. 

at 25. In upholding FECA’s original contribution 

limits, the Buckley Court explained that: 

These limitations, along with the disclosure 

provisions, constitute the Act’s primary 

weapons against the reality or appearance 

of improper influence stemming from the 
9 

dependence of candidates on large campaign 

contributions. The contribution ceilings thus 

serve the basic governmental interest in 

safeguarding the integrity of the electoral 

process without directly impinging upon the 

rights of individual citizens and candidates 

to engage in political debate and discussion.

Id. at 58. 

 Congress is also entitled to take into account the 

fact that experience “demonstrates how candidates, 

donors, and parties test the limits of the current law, 

and it shows beyond serious doubt how contribution 

limits would be eroded if inducement to circumvent 

them were enhanced. . . .” Colorado II, 533 U.S. at 

446-47. The aggregate contribution limits serve to 

alleviate the threat of corruption arising from solicitations of multiple donations from one big donor. 

 While the prospect of an individual contributing 

more than $3.5 million in a federal election, or candidates or officeholders soliciting hundreds of thousands of dollars from a single donor through joint 

fundraising committees, certainly raises the risk of 

actual corruption, government also retains a strong 

interest in deterring the appearance of corruption 

that such large contributions inevitably create. The 

Court has recognized that “[o]f almost equal concern 

as the danger of actual quid pro quo arrangements is 

the impact of the appearance of corruption stemming 

from public awareness of the opportunities for abuse 

inherent in a regime of large individual financial 

contributions.” Buckley, 424 U.S. at 27. 
10 

 A democratic government has not merely a 

compelling interest, but a responsibility, to prevent 

the loss of faith in government that is created by a 

regime of large individual contributions. The Court 

has wisely recognized that “Congress could legitimately conclude that the avoidance of the appearance 

of improper influence ‘is also critical . . . if confidence 

in the system of representative [g]overnment is not to 

be eroded to a disastrous extent.’ ” Id. (quoting United 

States Civil Serv. Comm’n v. Nat’l Ass’n of Letter 

Carriers, 413 U.S. 548, 565 (1973)). As the Court has 

written, “in Buckley v. Valeo, we specifically affirmed 

the importance of preventing both the actual corruption threatened by large financial contributions and 

the eroding of public confidence in the electoral 

process through the appearance of corruption. These 

interests directly implicate ‘the integrity of our electoral process, and, not less, the responsibility of the 

individual citizen for the successful functioning of 

that process.’ ” FEC v. National Right to Work Comm., 

459 U.S. 197, 208 (1982) (quoting United States v. 

UAW-CIO, 352 U.S. 567, 570 (1957)). See also Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 194 n.15, 195 (1981) 

(noting that the Buckley Court upheld base and 

aggregate limits because “such limitations served 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” (emphasis added) (citing Buckley v. 

Valeo, 424 U.S. at 23-38)). 
11 

 The Court should be wary of exacerbating fundraising dynamics that put pressure on representatives to favor the positions of those upon whom they 

rely for financial support. The Court recognized in 

Citizens United v. FEC, 558 U.S. 310, 361 (2010), that 

“[i]f elected officials succumb to improper influences 

. . . ; if they surrender their best judgment; and if 

they put expediency before principle, then surely 

there is cause for concern. We must give weight to 

attempts by Congress to seek to dispel either the 

appearance or the reality of these influences.” 

 While in Citizens United Justice Kennedy wrote 

“the appearance of influence and access . . . will not 

cause the electorate to lose faith in our democracy,” 

this was in the context of examining independent 

expenditures, “by definition . . . not coordinated with 

a candidate.” Id. The Court has never doubted that 

direct financial relationships between supporters and 

candidates or parties present a serious risk of corruption and the appearance of corruption. In fact, the 

Citizens United Court made this precise distinction, 

stating that “[t]he BCRA record establishes that 

certain donations to political parties, called ‘soft 

money,’ were made to gain access to elected officials. 

This case, however, is about independent expenditures, not soft money.” 558 U.S. at 360-61 (citations 

omitted). The instant case, of course, is not about 

independent expenditures; it is in fact about the type 

of large direct contributions given by individual 

donors and solicited by candidates and officeholders 
12 

that characterized the “soft money” system that 

Congress acted through BRCA to end. 

 Invalidation of the current aggregate limits 

would allow a single individual to direct huge sums to 

federal candidates, committees, and parties in an 

election cycle, and allow candidates and officeholders 

to solicit such sums directly. Allowing such enormous 

contributions would give rise to the kind of improper 

influence over federal officeholders that undermines 

public confidence in government and its ability to be 

responsive to the citizenry as a whole. The Court has 

repeatedly relied on its finding that “[t]ake away 

Congress’ authority to regulate the appearance of 

undue influence and ‘the cynical assumption that 

large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.’ ” McConnell, 540 U.S. at 144 (quoting Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 390 (2000)). 

II. THE EROSION OF PUBLIC CONFIDENCE 

IN GOVERNMENT STEMMING FROM 

CONTRIBUTIONS THAT CREATE THE 

APPEARANCE OF CORRUPTION IS A 

SERIOUS, AND NOT A SPECULATIVE, 

CONCERN. 

Appellants ask this Court to strike aggregate 

contribution limits at a particularly inopportune 

time. Even with these limits in place, significant 

majorities of Americans express the concern that the 

actions of their government are responsive to the 

wishes of financial supporters; that their government 
13 

does not represent their interests or respond to the 

needs of the broad populace anymore; and that this 

reflects a corruption of government and its ability to 

serve the public. The legal scholar Robert Post describes “the growing fear that our elections are increasingly failing to fulfill their democratic task, and 

that as a consequence the successful legitimation of 

our constitutional government may be slipping from 

our grasp.” Robert Post, Campaign Finance Regulation and First Amendment Fundamentals, in Money, 

Politics, and the Constitution: Beyond Citizens United

11, 18 (M. Youn, ed. 2011). 

A. Americans’ confidence in government 

is at an all-time low. 

Where the public believes that government is 

corrupt, we can expect to see an erosion of “confidence 

in the system of representative government.” See 

Buckley, 424 U.S. at 26-27. 

 Since 1958, the National Election Survey has 

included three questions that pertain to corruption in 

government. Survey administrators use these questions to calculate the Trust in Government Index, 

which measures Americans’ faith in government on a 

one to 100 scale. In 2008, the last year for which the 

Trust in Government Index is available, the Index 
14 

tied with its prior (1994) low of 26. Since then the 

indicia that make up the Index have all declined.3

 Further, the public has the lowest level of confidence in Congress on record. A majority, 52%, has 

little or no confidence in Congress. This is the lowest 

level of confidence for any institution on record since 

Gallup began asking this question in 1973. Elizabeth 

Mendes & Joy Wilke, Gallup, Americans’ Confidence 

in Congress Falls to Lowest on Record, Gallup Poll 

(June 13, 2013).4

3

 Am. Nat’l Election Studies, User’s Guide and Codebook 

for the Preliminary Release of the ANES 2012 Time Series 

Study 451, 454, 455, 489 (July 1, 2013) [hereinafter NES 2012 

Dataset], available at http://www.electionstudies.org; see also 

Am. Nat’l Election Studies, The ANES Guide to Public Opinion 

and Electoral Behavior, tbl.5A.5, available at http://www.election 

studies.org/nesguide/toptable/tab5a_5.htm (last visited July 12, 

2013). For example, in 2008 69% of Americans agreed with the 

statement that the “government is pretty much run by a few big 

interests looking out for themselves” as opposed to being “run 

for the benefit of all the people.” By 2012, the percentage of 

Americans believing government is run by a few big interests 

looking out for themselves had shot up ten points, to 79% of 

Americans; the share of Americans who thought that our 

government is run for the benefit of all had fallen from 29% in 

2008 to only 19% in 2012. Voters’ responses to other questions 

making up the indicia show similar changes. In 2008, 51% of 

voters thought “quite a few” of the people running the government are crooked. In 2012, that figure rose to almost 60%. In 

2008, 25% said that they trust Congress to do the right thing 

“most of the time,” dropping to only 5.7% in 2012. Id. 

4

 Available at http://www.gallup.com/poll/163052/americansconfidence-congress-falls-lowest-record.aspx. The public’s rate of 

confidence in the institutions polled was: the military (76%); 

(Continued on following page) 
15 

 Americans do not just have low confidence in 

government generally; this lack of confidence is 

driven by specific concerns about corruption. Six out 

of ten Americans worry very or fairly often about 

corruption of government, and another quarter worry 

about it occasionally. Liz Kennedy, Citizens Actually 

United: The Overwhelming, Bi-Partisan Opposition to 

Corporate Political Spending and Support for Achievable Reforms, Dřmos 4 (Oct. 25, 2012) [hereinafter L. 

Kennedy].5 Taken together, 86% of Americans are 

worried about corruption of our government. Id.

Similarly, 82% of Americans are very often, fairly 

often, or occasionally worried about special interests 

buying elections. Id. 

B. Americans believe their elected representatives are more responsive to financial supporters than to constituents 

or the public interest. 

“Democracy is premised on responsiveness.” 

Citizens United, 558 U.S. at 359 (quoting McConnell, 

540 U.S. at 297 (Kennedy, J., concurring in part and 

small business (65%); the police (57%); church or organized 

religion (48%); presidency (36%); medical system (35%); U.S. 

Supreme Court (34%); public schools (32%); criminal justice 

system (28%); banks (26%); television news (23%); newspapers 

(23%); big business (22%); organized labor (20%); health 

maintenance organizations (19%); Congress (10%). Id. 

5

Available at http://www.demos.org/sites/default/files/ 

publications/CitizensActuallyUnited_CorporatePoliticalSpending. 

pdf. 
16 

dissenting in part)). However, “[i]f elected officials 

succumb to improper influences . . . ; if they surrender their best judgment; and if they put expediency 

before principle, then surely there is cause for concern. We must give weight to attempts by Congress to 

seek to dispel either the appearance or the reality of 

these influences.” Id. at 310. 

 There is striking evidence that Americans believe 

that “politicians [are] too compliant with the wishes 

of large contributors.” Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 389 (2000) (citing Buckley, 424 U.S. at 28). 

Sixty percent of Americans say members of Congress 

are more likely to vote in a way that pleases their 

financial supporters, while only 20% think representatives will vote in the best interests of their constituents. Memorandum from Celinda Lake et al., Lake 

Research Partners & Brian Nienaber & Ashlee Rich, 

Tarrance Group, National Polling on Support for a 

Proposal to Tackle Big Money in Congressional Elections 2 (Feb. 1, 2009) [hereinafter Lake/Tarrance 

Poll].6 Two-thirds of Americans do not think that 

voters and donors have the same access and influence 

on candidates. See Brennan Ctr. for Justice, National 

Survey: Super PACs, Corruption, and Democracy 2 

(Apr. 24, 2012).7 

6 Available at http://www.acrreform.org/wp-content/uploads/ 

2011/05/Fair-Elections-Polling-2.6.09.pdf. 7

Available at http://www.brennancenter.org/sites/default/ 

files/legacy/Democracy/CFR/SuperPACs_Corruption_Democracy. 

pdf. 
17 

 A recent study found that “[v]oters are deeply 

concerned that all of this money purchases influence 

in Congress and drowns out the voices of ordinary 

voters. When asked who has the most influence on 

Congressional votes, the views of constituents ranked 

at the bottom of the list, while 59 percent of voters 

said ‘special interest groups and lobbyists’ and almost 

half (46 percent) said campaign contributors.” Greenberg Quinlan Rosner Research, Voters Push Back 

against Big Money Politics, Democracy Corps Nat’l 

Surveys 1 (Nov. 13, 2012).8 

 “Just as troubling to a functioning democracy as 

classic quid pro quo corruption is the danger that 

officeholders will decide issues not on the merits or 

the desires of their constituencies, but according to 

the wishes of those who have made large financial 

contributions valued by the officeholder.” McConnell, 

540 U.S. at 153. This entails “a subversion of the 

political process. Elected officials are influenced to act 

contrary to their obligations of office by the prospect 

of financial gain to themselves or infusions of money 

into their campaigns.” FEC v. Nat’l Conservative 

Political Action Comm., 470 U.S. 480, 498 (1985). 

 These dangers are not imaginary, but real. For 

example, former Senator Wyche Fowler described 

succumbing to influence from business interests who 

were constantly asking for special provisions in the 

8

Available at http://www.democracycorps.com/attachments/ 

article/930/dcor.pcaf.postelect.memo.111312.final.pdf. 
18 

tax code when he was on the Ways and Means Committee: “I am sure that on many occasions – I’m not 

proud of it – I made the choice that I needed this big 

corporate client and therefore I voted for, or sponsored its provision, even though I did not think that it 

was in the best interests of the country or the economy.”9

C. Americans believe that government’s 

differential response to wealthy donors is caused by the corrupting influence of large contributions. 

Professor Samuel Issacharoff describes the 

danger that “the electoral system leads the political 

class to offer private gain from public action to distinct, tightly organized constituencies, which in turn 

may be mobilized to keep compliant public officials in 

office.” Samuel Issacharoff, On Political Corruption, 

124 Harv. L. Rev. 118, 126 (2010). Those in positions 

of economic power can use their financial resources to 

support the election efforts of favored politicians to 

keep their power; elected officials can use their political power to further the economic interests of their 

financial supporters. A vicious cycle can form where 

the economic and political power that each group 

9

 Martin Schram, Speaking Freely: How Congress is Compromised in the Great Money Chase, Center for Responsive 

Politics 28 (1995). Senator Wyche’s observation is just one of 

many similar observations documented in Speaking Freely. 
19 

helped the other attain can be used to retain those 

gains. 

 Professor Issacharoff identifies the danger as 

“the potential private capture of the powers of the 

state,” and reminds us that 

[t]he American recognition of the risk of legislation in the private interest dates at least 

to The Federalist No. 10, in which Madison 

identified as a central problem of republican 

governance the ability to resist ‘a number of 

citizens . . . who are united and actuated by 

some common impulse of passion, or of interest, adverse to the rights of other citizens, or 

to the permanent and aggregate interests of 

the community.’ 

Id. at 129 (quoting James Madison, The Federalist 

No. 10, in The Federalist Papers 72 (Clinton Rossiter 

ed., 2003)). 

 This is in fact what the public sees in our modern 

democracy. Americans believe that large financial 

contributions are the reason their representatives are 

more responsive to private interests with financial 

resources than to the public interest. Seventy-three 

percent of voters thought that the influence of campaign money given to members of Congress was a 

“major factor in causing the current financial crisis on 

Wall Street.” Lake/Tarrance Poll, at 2. They thought 

large campaign contributions from the banking 

industry led to lax oversight of the industry. This was 

true for three out of four Democrats (76%) and Republicans (74%). Id. And, Americans recently reported 
20 

feeling that the federal government “is so corrupted 

by big banks, big donors, and corporate lobbyists that 

it no longer works for the middle class.” Greenberg 

Quinlan Rosner Research, Money in Politics is a 

Ballot Box Issue, Democracy Corps Nat’l Surveys 1

(May 9, 2012) [hereinafter Money in Politics Survey].10

 Americans fear that improper influence from 

private economic interests is preventing government 

from acting to address their real problems. Almost 

eight in ten Americans agree with the statement “I 

am worried that large political contributions will 

prevent Congress from tackling the important issues 

facing America today, like the economic crisis, rising 

energy costs, reforming health care, and global warming.” Common Cause, Fair Elections Poll, Money in 

Politics (Feb. 2009).11

 And citizens see this improper influence as 

corruption. “Eighty-five percent of Americans call it 

corruption when financial supporters have more 

access and influence with members of Congress than 

average Americans,” and “fifty-seven percent say this 

is very corrupt.” L. Kennedy, supra, at 3. 

 Such findings present a serious challenge, because “[c]itizen distrust in the democratic process 

10 Available at http://www.democracycorps.com/attachments/ 

DCorps_PCAF_memo_FINAL.pdf. 

11 Available at http://www.commoncause.org/atf/cf/{fb3c17e2- 

cdd1-4df6-92be-bd4429893665}/POLLING%20MEMO%20FEB% 

202009%20FINAL.PDF. 
21 

threatens the health of a democracy.” Molly J. WalkerWilson, Financing Elections and “Appearance of 

Corruption”: Citizen Attitudes and Behavior in 2012

37 (St. Louis Univ. Legal Studies Research Paper 

Series, No. 2013-14, 2013) (examining how appearance of corruption undermines Americans’ sense of 

political efficacy and deters civic participation).12

Striking the aggregate limits and unleashing direct 

contributions of more than $3.5 million by one individual can only deepen the public’s already strong 

concerns about the integrity of their government.13

 

12 Available at http://papers.ssrn.com/sol3/papers.cfm? 

abstract_id=2231695. 13 Professors Nathanial Persily and Kelli Lammie question 

the notion that the public perception of corruption is correlated 

with the “activity taking place in the campaign finance system.” 

Nathaniel Persily & Kelli Lammie, Perceptions of Corruption 

and Campaign Finance: When Public Opinion Determines 

Constitutional Law, 153 U. Penn. L. Rev. 119, 123 (2004). They 

recognize, however, that “the inability of the campaign finance 

system to affect such perceptions might be a product of the 

constraints placed by the jurisprudence itself.” Id. They also 

note that “[i]n the end, we must admit that large shares of the 

American population distrust their government and believe the 

campaign finance system is a source of undue influence.” Id. at 

174. It also follows that, while current levels of confidence in 

government are uncomfortably low, they could be worse if the 

few protections fighting the reality and appearance of corruption 

were not in place or were dismantled. 
22 

III. AMERICANS’ CONCERNS ABOUT DONORS’ IMPROPER INFLUENCE OVER 

GOVERNMENT ARE JUSTIFIED AND 

NOT SPECULATIVE. 

As the preceding discussion has shown, Americans are deeply concerned that their elected officials 

do not respond to the needs of their constituents or 

the public interest as a whole, but instead to the 

interests of the largest donors – implicating the very 

corruption danger the Court’s precedents have identified. See, e.g., McConnell, 540 U.S. at 187. Examining 

three related empirical questions sheds light on 

whether Americans’ concerns are grounded in reality: 

(1) do the policy preferences of those able to make 

large donations actually differ in significant ways 

from those of other Americans; (2) do such donors 

dominate campaign funding such that we should 

expect candidates to privilege their policy preferences; and (3) is government in fact more responsive 

to the wishes of those with more economic clout? 

 Answering these empirical questions is important for understanding the compelling nature of 

the interests served by the limits on aggregate contributions at issue in this case. After all, if the wealthier 

Americans who are able to make large donations held 

substantially the same views as the general public, 

then their outsized influence on government policy 

might matter less because it would not skew policy 

outcomes in a particular direction. Similarly, if there 

were no evidence that government policies actually 

respond more strongly to the preferences of those who 
23 

fund campaigns, then again, the public’s concern 

about this might appear less compelling. 

 The answers, however, are clear, and show that 

Americans’ concerns about the capture of their government by financial supporters are justified and not 

imaginary. Important research confirms that the 

people who have the financial resources to provide 

major funding to political campaigns have systematically different policy preferences than the general 

public, especially on economic issues; that contributions from just a tiny subset of Americans disproportionately dominate campaign funding; and that our 

government responds differentially – often dramatically so – to the policy preferences of the wealthy. It is 

this reality that creates a substantial and realistic 

appearance of corruption, and is a driving force 

behind the dismal figures reported in the previous 

section regarding public confidence in our electoral 

system and public institutions. 

A. The policy preferences of those who 

can make large donations differ greatly from those of ordinary Americans. 

A substantial body of research documents the 

differing preferences of the wealthy from the general 

public on many important policy issues.14 One of the 

14 Amici discuss the preferences of the wealthy here not 

because they are concerned with the opinions of wealthy Americans per se, but because these preferences serve as a reasonable 

(Continued on following page) 
24 

most revealing recent studies is Democracy and the 

Policy Preferences of Wealthy Americans, carried out 

in 2011 by political science scholars Benjamin I. Page, 

Larry M. Bartels, and Jason Seawright. Their study 

gives an unprecedented window into the opinions of 

the very wealthy and how they differ from those of 

other Americans. See generally Benjamin I. Page et 

al., Democracy and the Policy Preferences of Wealthy 

Americans, 11 Persp. On Pol. 51 (2013) [hereinafter 

Policy Preferences].15 

 The authors of Policy Preferences find that the 

preferences of the very rich differ substantially from 

those of the general public – especially on key questions about how to structure the economy and respond to America’s economic needs. One example 

concerns the central question of how government 

should prioritize job creation as compared to reducing 

the nation’s budget deficit. In polls conducted over 

the past several years, the general public has been 

consistently more concerned with job creation and 

proxy for the views of those who make the large political contributions at issue in this case. As shown below, evidence confirms 

the twin common-sense notions that large donors are more likely 

than non-donors or small donors to be wealthy and that wealthy 

Americans are more likely than other citizens to be large donors. 

15 The study is based on interviews of a representative 

sample of respondents in the Chicago metropolitan area corresponding to the top 1% of American wealth-holders. Interviewees had a mean wealth of $14.0 million, a median wealth of $7.5 

million and an average yearly income of slightly more than $1 

million. Id. at 53. 
25 

economic growth than with reducing the deficit, often 

by two-to-one margins or more. David Callahan & J. 

Mijin Cha, Stacked Deck: How the Dominance of 

Politics by the Affluent and Business Undermines 

Economic Mobility in America, Dřmos 5-6 & 5 tbl.1 

(2013).16

 

 In contrast, when the high-wealth interviewees 

in the Policy Preferences study were asked to name 

the most important problem facing the country, “[o]ne 

third (32 percent) of all open-ended responses mentioned budget deficits or excessive government spending, far more than mentioned any other issue.” Policy 

Preferences, supra, at 55. By comparison, unemployment and education “was mentioned as the most 

important problem by only 11 percent, indicating that 

they ranked a distant second and third to budget 

deficits among the concerns of wealthy Americans.” 

Id.

 This disparity concerning the importance of the 

deficit is not an aberration. The Policy Preferences 

study finds significant differences across a range of 

issues related to economic well-being and the role 

that government should play in the economy. This is 

particularly true for policy preferences regarding the 

government’s role in encouraging job creation and 

employment. A full two-thirds (68%) of the general 

public believes that “the government in Washington 

16 Available at http://www.demos.org/sites/default/files/ 

publications/Demos-Stacked-Deck.pdf. 
26 

ought to see to it that everyone who wants to work 

can find a job.” Id. at 57 tbl.5. But among the wealthy 

respondents in the Policy Preferences study, only 19% 

agreed with that statement – more than a three to 

one disparity. See id. 

 Similarly, 78% of the public supports a minimum 

wage high enough that no family with a full time 

worker falls below the poverty line, while only 40% of 

the wealthy agree. A majority (53%) of the public 

believes that “the federal government should provide 

jobs for everyone able and willing to work who cannot 

find a job in private employment,” but only 8% of 

wealthy respondents agree. Id.

 The Policy Preferences authors also find that its 

respondents were far more likely to favor cutting 

spending on programs such as Social Security, Food 

Stamps, and health care than was the general public, 

which instead would prefer to see expanded government spending on such programs. Id. at 56-57 & 56 

tbl.4. 

 The Policy Preferences findings are particularly 

important because the authors were able to isolate 

policy views among a highly affluent group of Americans corresponding roughly to the top 1% – extending 

previous research that had compared policy differences among more broadly defined wealth categories. 

See Martin Gilens, Affluence and Influence: Economic 

Inequality and Political Power in America 2-3, 70-96 

(2012) (defining “affluent” as Americans at 90th 
27 

income percentile – the top 10% – earning at least 

$135,000 per year in 2010, and still finding significant differences in public opinion based upon wealth). 

Taken together, this is exactly the segment of the 

population that has the capacity to contribute large 

sums to political candidates, parties, and committees. 

B. The largest contributors already dominate the funding of U.S. elections. 

Candidates for federal office are heavily dependent on campaign contributions from individuals. 

Adam Lioz & Blair Bowie, Billion Dollar Democracy: 

The Unprecedented Role of Money in the 2012 Elections, Dřmos 12-13 (2013) [hereinafter Billion Dollar 

Democracy].17 Even with current limits on contributions in place, those who make the largest contributions provide candidates with a huge percentage of 

their overall funds. Data compiled by the Sunlight 

Foundation shows that in the 2012 elections, over a 

quarter of all of the identifiable political contributions 

to any candidate, party, committee, or group came 

from just 31,385 people. This number represents just 

one ten-thousandth of the U.S. population. Lee 

Drutman, Sunlight Foundation, The Political 1% of 

the 1% in 2012, Sunlight Foundation Blog (June 24, 

17 Available at http://www.demos.org/sites/default/files/ 

publications/BillionDollarDemocracy_Demos.pdf. 
28 

2013, 9:00 AM).18 The impact of this tiny cohort of the 

American public was so great that “not a single 

member of the House or Senate was elected without 

financial assistance from this group.” Id.

 The relative influence of this elite group is clear: 

84% of members elected to the House of Representatives in 2012, and more than half of the members of 

the Senate, received more money from the 1% of the 

1% than from all their small donors combined. Id. 

Other data show that candidates for the U.S. Senate 

in 2012 raised 64% of their funds in contributions of 

at least $1,000, from just 0.04% of the U.S. population. Billion Dollar Democracy, supra, at 13 fig.17. 

Indeed, in the 2012 elections “candidates got more 

money from a smaller percentage of the population 

than any year for which we have data.” Sunlight 

Foundation, supra. 

 Survey evidence also confirms – not surprisingly 

– that the affluent are far more likely to make financial contributions than are other Americans. The 

Policy Preferences study described above finds that a 

full two-thirds (68%) of the wealthy respondents had 

made political contributions in the previous 12 

months. Policy Preferences, supra, at 54 & 54 tbl.2. 

This compares with just 0.4% of the American population who made a disclosed federal contribution 

in 2012. Center for Responsive Politics, Donor 

18 Available at sunlightfoundation.com/blog/2013/06/24/1pct_of_ 

the_1pct/. 
29 

Demographics, OpenSecrets.Org (last visited July 19, 

2013).19 Moreover, as the authors of the study note, “A 

remarkable 21 percent of our wealthy respondents 

solicited or ‘bundled’ other peoples’ political contributions – not an activity that is common among ordinary citizens.” Policy Preferences, supra, at 54.20

 

 The income gap in who makes campaign donations is accompanied by a racial gap as well. A study 

of the 2004 Presidential election is illustrative. In 

that campaign, the top-contributing zip code (located 

on Manhattan’s Upper East Side) was 86.4% white. 

This one zip code, home to fewer than 100,000 voting 

age residents, generated more campaign dollars than 

the 377 U.S. zip codes with the largest percentage of 

African Americans, home to 6.9 million voting age 

residents; as well as the 365 zip codes with the largest percentage of Hispanic residents, with 8.1 million 

adults. Public Campaign, Color of Money: The 2004 

Presidential Race 3-4 (2004).21

19 Available at http://www.opensecrets.org/bigpicture/ 

donordemographics.php?cycle=2012. 20 In addition, a nationwide survey found that 81% of those 

who gave contributions of at least $200 during the 1996 congressional elections reported annual family incomes greater than 

$100,000. John Green, et al., Individual Congressional Campaign Contributors: Wealthy, Conservative, and Reform-Minded 

(1998). 

21 Available at http://library.publicampaign.org/sites/default/ 

files/2004_cofm_pres_complete.pdf. 
30 

 Further, “[t]he nation’s biggest campaign donors 

have little in common with average Americans. They 

hail predominantly from big cities, such as New York 

and Washington. They work for blue-chip corporations, such as Goldman Sachs and Microsoft. One in 

five works in the finance, insurance and real estate 

sector. One in ten works in law or lobbying.” Sunlight 

Foundation, supra. The median aggregate contribution from this elite group was $26,584; this is more 

than half the median family income in the United 

States. Id.

 U.S. Senator Chris Murphy has provided insight 

on how the need to solicit donations from those with 

ample financial resources can affect officeholders. He 

recently described the four to six hours per day he 

was required to spend calling potential donors in 

order to raise campaign funds and noted that when 

making fundraising appeals, he “would not call 

anyone who could not drop at least $1,000,” people he 

estimated make at least $500,000 to $1 million per 

year. Paul Blumenthal, Chris Murphy: ‘SoulCrushing’ Fundraising Is Bad for Congress, Huffington Post (May 7, 2013, 5:40 PM).22

I talked a lot more about carried interest inside of that call room than I did in the supermarket . . . [The people I’m calling] have 

fundamentally different problems than other 

22 Available at http://www.huffingtonpost.com/2013/05/07/ 

chris-murphy-fundraising_n_3232143.html. 
31 

people. And in Connecticut especially, you 

spend a lot of time on the phone with people 

who work in the financial markets. And so 

you’re hearing a lot about problems that 

bankers have and not a lot of problems that 

people who work at the mill in Thomaston, 

Conn., have. You certainly have to stop and 

check yourself. 

Id. 

 The record in McConnell, which addressed the 

soft-money system that would be largely recreated by 

striking the aggregate limits, was replete with similar evidence of how public policy can be shaped by the 

corrupting influence of such large contributions. 

Former Senator Alan Simpson testified that “Too 

often, Members’ first thought is not what is right or 

what they believe, but how it will affect fundraising.” 

McConnell v. FEC, 251 F. Supp. 2d 176, 481 (D.D.C.) 

(Kollar-Kotelly, J., concurring in part and dissenting 

in part), aff ’d in part, rev’d in part, 540 U.S. 93 

(2003). Former Senator Paul Simon recounted how 

Federal Express obtained a favorable amendment to 

a bill without even a hearing after contributing $1.4 

million to incumbents and almost $1 million in soft 

money contributions to political parties. One of his 

senior colleagues brushed back objections by explaining “we’ve got to pay attention to who is buttering our 

bread.” Id. at 482. 

 
32 

C. Public policy outcomes in the U.S. 

are strongly responsive to the preferences of the affluent, even when 

those preferences diverge markedly 

from those of the general public. 

 The differing policy preferences of the wealthy as 

compared to the general public would not present a 

challenge to the democratic vision of a representative 

government if the actual influence of the wealthy on 

public policy accorded with their numbers. The top 

one percent – or one tenth of one percent – of Americans may desire very different outcomes than the 

broad public; but by definition they are a tiny segment of the electorate, and could not improperly sway 

policy outcomes by their numbers alone in a democracy guided by the principle of one person, one vote. 

 Increasing evidence, however, challenges this 

core assumption of democratic governance in the U.S. 

It is no new observation that in fact the cohort of 

Americans that contribute large sums to federal 

campaigns exerts a strong influence on the political 

process and public policy outcomes. But, the degree of 

influence that has been documented in recent studies 

should be sobering to anyone concerned with the 

health of our democracy – and should give substantial 

pause in considering Appellants’ demand to unleash 

the potential for contributions of more than $3.5 

million by a single individual in federal elections. 

Cf. Citizens United, 558 U.S. at 361 (supporting 

government’s efforts to dispel the appearance or 

reality of “elected officials succumb[ing] to improper 
33 

influences; . . . surrender[ing] their best judgment; 

and . . . put[ting] expediency before principle.”). 

 In Affluence and Influence, Professor Gilens set 

out to measure what he calls the “preference/policy 

link” across the economic spectrum. Gilens, supra, at 

70-97. His research examines the extent to which the 

policy preferences of different income groups are 

reflected in actual policy outcomes in the United 

States. His findings present a direct challenge to the 

notion that American democracy ensures policy 

outcomes that represent the views of the broad citizenry. Gilens writes: 

The American government does respond to 

the public’s preferences, but that responsiveness is strongly tilted toward the most 

affluent citizens. Indeed, under most circumstances, the preferences of the vast majority 

of Americans appear to have essentially no 

impact on which policies the government 

does or doesn’t adopt . . . The complete lack 

of government responsiveness to the preferences of the poor is disturbing and seems 

consistent only with the most cynical views 

of American politics . . . median-income 

Americans fare no better than the poor when 

their policy preferences diverge from those of 

the well-off.

Id. at 1, 81. 

 Professor Gilens continues by describing explicitly the power of the preferences of the affluent to 
34 

override those of the much more numerous poor and 

middle class: 

. . . for Americans below the top of the income 

distribution, any association between preferences and policy outcomes is likely to reflect 

the extent to which their preferences coincide with those of the affluent . . . We saw 

above that less-well-off Americans have little 

influence over policy outcomes when their 

preferences diverge from those of the affluent. [Additional data described] show that 

this is true not only for the poor and the 

middle class considered separately . . . but 

for those policies on which the poor and middle class are closely aligned in opposition to 

the affluent.

Id. at 83-84.23

 This is a remarkable finding that challenges the 

vision of American democracy in which government 

responds to the will of the majority: when the preferences of the wealthiest 10% of Americans conflict 

with those of the rest of the population, the 10% 

trumps the 90%. It underscores why Americans are so 

deeply concerned that campaign funding prevents 

23 While the preferences of the affluent are quite dominant 

across the board, the divergence of influence is not equal across 

policy domains. Professor Gilens finds that “the starkest difference in responsiveness to the affluent and the middle class 

occurs on economic policy, a consequence of high-income Americans’ stronger opposition to taxes and corporate regulation. . . .” 

Id. at 101. 
35 

their elected officials from acting in the interests of 

their constituents, see supra Section II. In the end, 

Professor Gilens’ exhaustive study of the “preference/ 

policy” link in the United States leads him to some 

stark conclusions about the state of American democracy. He writes that “[t]he patterns of responsiveness 

found in previous chapters often correspond more 

closely to a plutocracy than to a democracy.” Id. at 

234. 

 Professor Gilens is by no means alone in his 

conclusions. Political scientist Larry Bartels also 

finds that, in contrast to the affluent, low-income 

Americans have little influence over policy outcomes. 

As he writes in his 2008 study, Unequal Democracy: 

The Political Economy of the New Gilded Age: “The 

preferences of people in the bottom third of the income distribution have no apparent impact on the 

behavior of their elected officials.” Larry M. Bartels, 

Unequal Democracy: The Political Economy of the 

New Gilded Age 285 (2008). 

 Professors Gilens’ and Bartels’ findings are 

particularly troubling in light of the demographic 

characteristics of the bottom third of the income 

distribution in the U.S. As noted in a recent Dřmos 

report, over half of African American households and 

45% of Latino households are in the lowest third of 

income distribution in the U.S. These researchers’ 

findings thus suggest that the majority of African 

Americans and nearly half of Latinos earn too little 

for their views to have any impact on the behavior of 

elected officials. See Callahan & Cha, supra, at 21. 
36 

 Professor Gilens notes that the influence of the 

wealthiest Americans on policy outcomes seems to be 

increasing. “The analyses of change over time” he 

notes “do reveal an important general trend: the 

strengthening of policy responsiveness for affluent 

Americans.” Gilens, supra, at 193. This is important 

because it suggests that government’s skew toward 

the policy preferences of the affluent is not an immutable reality, but rather may be responsive to changes 

in opportunities for influence, as well as particular 

policy or economic conditions, over time. Id. 

 The realities illuminated by the above research 

fuel the public perception of corruption and certainly 

give rise to significant fears about “real or imagined 

coercive influence of large financial contributions on 

candidates’ positions. . . .” Buckley, 424 U.S. at 25.24 

24 The concern discussed in this brief regarding the potential harm of unleashing huge financial contributions in federal 

elections is centered wholly on the role of such contributions in 

increasing the potential for corruption and the public’s loss of 

faith in the integrity of government. Appellants have argued 

that aggregate limits cannot be supported by a desire to protect 

one set of contributors “from the possibility that others will 

make larger contributions[,]” Citizens Against Rent Control v. 

Berkeley, 454 U.S. 290, 295 (1981) (addressing ballot measure 

campaigns), which they see as an impermissible demand for 

equalizing the voices of all donors. The argument in this brief is 

based on an entirely different rationale – it is based directly on 

the concern about the reality and appearance of corruption 

stemming from large contributions in candidate elections that 

would be unleashed by striking the aggregate limits, and how 

such large contributions would contribute to the erosion of 

citizens’ faith in government. 
37 

IV. STRIKING THE AGGREGATE LIMITS 

WILL INCREASE THE DANGER OF CORRUPTION AND AGGRAVATE THE APPEARANCE OF CORRUPTION. 

The preceding discussion demonstrates the 

public’s eroding confidence in the ability of government to respond to important public needs and to 

resist the improper influence of campaign money on 

policymaking. This phenomenon is driving a significant percentage of the public away from political 

engagement. Even in 2008, an election with record 

turnout, 80 million eligible persons failed to participate. Susan Page, Why 90 Million Americans Won’t 

Vote in November, USA Today, Aug. 15, 2012, at A1 

(reporting on Suffolk University/USA Today poll).25 In 

a poll of eligible persons who stated that they were 

unlikely to vote, when asked why they did not pay 

attention to politics, 54% said, “[i]t is so corrupt.” Id.

As citizens lose faith in government, levers of democratic accountability are dismantled, and we lose the 

wisdom of the larger electorate in determining the 

direction of our nation. 

 Striking aggregate contribution limits – which 

would allow a single donor to funnel more than $3.5 

million directly into federal election campaigns and 

allow candidates or officeholders to solicit huge sums 

– would alter our political system in exactly the way 

that is most likely to further erode confidence in 

25 Available at http://usatoday30.usatoday.com/news/politics/ 

story/2012-08-15/non-voters-obama-romney/57055184/1. 
38 

government and foster the appearance of corruption, 

perhaps “to a disastrous extent.” Buckley, 424 U.S. at 

27 (quoting U.S. Civil Service Comm’n v. Nat’l Ass’n 

of Letter Carriers, AFL-CIO, 413 U.S. 548, 565 

(1973)). The evidence suggests that removing these 

generous caps will lead to an even greater gulf between the policy choices of government and the 

preferences of ordinary citizens – fueling cynicism, 

depressing political engagement, and leading even 

more citizens to conclude (apparently accurately) that 

government is more responsive to a narrow set of 

donors than to the broad populace. 

 Americans’ current perception of corruption in 

government and lack of faith in public institutions 

such as Congress already presents a challenge to the 

legitimacy of our democracy. When most Americans 

already believe that government is run by a few big 

interests instead of for the benefit of all people, our 

democracy cannot abide further erosion of the campaign finance limits that are the government’s most 

effective tool in deterring corruption and its appearance. NES 2012 Dataset, supra, at 454. Sixty percent 

of Americans already believe that “public officials do 

not care what the people think.” Am. Nat’l Election 

Studies, The ANES Guide to Public Opinion and 

Electoral Behavior, tbl.5B.3 (last visited July 12, 

2013).26 How will our Republic fare if that figure 

continues to rise? 

26 Available at http://www.electionstudies.org/nesguide/toptable/ 

tab5b_3.htm. 
39 

 Finally, in striking aggregate limits, this Court 

would contribute to public disenchantment with 

government by stripping the state of a popular and 

effective tool. Despite their concerns about the impact 

of campaign money on the integrity of their government, Americans have not given up on the belief that 

limiting the size of contributions is an important 

answer. Nearly three-quarters (73%) of all voters 

believe there should be common-sense limits on the 

amount of money people can contribute to political 

campaigns. Money in Politics Survey, supra, at 1. Of 

that group, a large majority (59%) is “intensely committed” to such limits. Id. A large majority (60%) says 

“candidates ought to tackle money in politics in order 

to make government work for the middle class.” Id.

 Faith in government and its legitimacy is a first 

principle. In its seminal campaign finance case, this 

Court recognized that where the public believes that 

government is corrupt, we can expect to see an erosion of “confidence in the system of representative 

government.” See Buckley, 424 U.S. at 26-27. We are 

seeing just that right now. Although the full cure for 

this problem lies outside the confines of this particular case, this case does present the Court with a 

compelling need to do no harm, to not make matters 

worse. 

 The U.S. Government has a compelling interest 

and an obligation to protect its legitimacy. This Court 

should defer to the judgment of Congress that the 

aggregate limits are a necessary means to that end, 

and are critical to prevent further erosion of citizens’ 
40 

confidence in government. The limits on aggregate 

contributions reflect Congress’ well-grounded judgment that limits are necessary to deter the reality 

and appearance of corruption that are so corrosive to 

citizens’ faith in government. The Court has “understood that such deference to legislative choice is 

warranted particularly when Congress regulates 

campaign contributions, carrying as they do a plain 

threat to political integrity and a plain warrant to 

counter the appearance and reality of corruption. . . .” 

Beaumont, 539 U.S. at 155 (citing Buckley, 424 U.S. 

at 26-28). This Court should respect Congress’ judgment, prior precedent, and current political reality by 

upholding aggregate contribution limits. 

--------------------------------- i ---------------------------------

 
41 

CONCLUSION 

 For the foregoing reasons, the judgment of the 

court below should be affirmed. 

Respectfully submitted, 

BRENDA WRIGHT

Counsel of Record 

DƜMOS

358 Chestnut Hill Ave. 

Suite 303 

Brighton, MA 02135 

(617) 232-5885 

bwright@demos.org 

ELIZABETH KENNEDY

ADAM LIOZ

DƜMOS

220 Fifth Ave. 

2nd Floor 

New York, NY 10001 

(212) 633-1405 

Counsel for Amici Curiae
1a 

APPENDIX 

ORGANIZATIONAL DESCRIPTIONS 

OF AMICI CURIAE

 The Communications Workers of America, AFLCIO (“CWA”), is an international labor organization representing over 700,000 workers and retirees 

throughout the United States, Puerto Rico and Canada. CWA members work in the telecommunications, 

print and broadcast media, airline, transportation, 

manufacturing, education and health care industries 

and in a wide variety of public sector public service 

jobs. CWA and the workers it represents are actively 

involved in efforts to achieve a more democratic and 

accountable government that responds to the needs of 

working families and ordinary citizens. CWA has 

been a longstanding advocate for campaign finance 

reform, including efforts to eliminate the inappropriate and destructive influence of large financial 

contributions on the democratic political process. 

 Greenpeace was founded in 1971 and, with more 

than 300,000 financial supporters in the U.S. alone, is 

the largest independent global environmental organization in the world that defends the natural world 

and promotes peace by investigating, exposing and 

confronting environmental abuses in non-violent ways, 

while championing environmentally responsible solutions. Greenpeace has an interest in campaign finance reform because of the undemocratic influence 

that large polluters can wield over environmental 
2a 

policy and the election process by making large 

campaign contributions. 

 Founded in 1909, the National Association for 

the Advancement of Colored People (hereinafter the 

“NAACP” or the “Association”) is the nation’s oldest 

and largest civil rights organization. The mission of 

the NAACP is to ensure the political, educational, 

social and economic equality of rights of all persons 

and to eliminate racial hatred and racial discrimination. The fundamental goal of the NAACP’s voting 

rights advocacy is to ensure that every American will 

have free, open, equal, and protected access to the 

vote and fair representation at all levels of the political process. The NAACP has been at the forefront of 

the effort to increase minority non-partisan participation and civic engagement. The Association has 

fought to protect ordinary citizens’ right to bring their 

interests and concerns before their elected officials. 

The NAACP views campaign finance as an important 

civil rights issue. 

 The Sierra Club is a national nonprofit organization of approximately 600,000 members dedicated to 

exploring, enjoying, and protecting the wild places of 

the earth; to practicing and promoting the responsible 

use of the earth’s ecosystems and resources; to educating and enlisting humanity to protect and restore 

the quality of the natural and human environment; 

and to using all lawful means to carry out these 

objectives. Sierra Club’s members need a political 

system that is responsive to citizens to effectively 

advocate for policies that reflect their environmental 
3a 

priorities. The Club’s particular interest in this case 

stems from its members’ belief and concern that large 

financial contributions to political candidates impede 

their efforts and endanger our democracy. 

 The American Federation of Teachers (AFT), 

founded in 1916, today represents more than 1.5 million educators and school personnel, healthcare and 

childcare providers, and other professionals. AFT is 

committed to advancing the principles of fairness, 

democracy and economic opportunity, as well as 

high-quality public education, healthcare and public 

services, through political activism, community engagement, organizing, collective bargaining and the 

work our members do. AFT supports strong campaign 

finance laws to safeguard the voices of our members, 

their families, and their communities through greater 

fairness, openness and participation in elections. 

 The Main Street Alliance (MSA) is a national 

network of state and locally based small business 

coalitions that together represent over 12,000 small 

business owners nationwide. MSA creates opportunities for Main Street small business owners to speak 

for themselves on issues that impact their businesses 

and local economies. MSA’s small business members 

believe allowing big contributors to dominate the 

funding of campaigns for public office threatens to tilt 

the economic playing field against small businesses, 

replacing honest competition – competition based on 

quality, value and service – with distorted markets 

influenced by pay to play politics. With large campaign 

contributions threatening to put small businesses at 
4a 

a serious disadvantage in the marketplace, MSA 

strongly opposes efforts to strike aggregate contribution limits. 

 OurTime.org is a nationwide non-partisan, nonprofit organization that leverages online organizing, 

new media, and popular culture to enhance the political voice of young Americans. More than one million 

members strong, OurTime.org leads campaigns that 

register voters, remove ballot barriers, and highlight 

relevant news and policies that will impact this generation’s lives. All too frequently, young Americans 

are overlooked in election cycles because they lack the 

fiscal resources to demand the time and attention of 

candidates. Representing this growing demographic 

of voters, OurTime.org is especially concerned with 

keeping the democratic process fair and accountable 

for all citizens. 

 People For the American Way Foundation (“PFAW 

Foundation”) is a nonpartisan, non-profit citizens’ 

organization established to promote and protect civil 

and constitutional rights, including First Amendment 

freedoms. Founded in 1981 by a group of religious, 

civil and educational leaders, PFAW Foundation now 

has over 575,000 members and supporters nationwide who are dedicated to the democratic traditions 

embodied in this country’s Constitution. PFAWF is 

committed to promoting values and institutions that 

sustain a diverse democratic society and an informed 

and participatory electorate, and our efforts include 

defending the right to vote and opposing measures 

that damage a functioning democracy. 
5a 

 Rock the Vote is a national, non-partisan organization with 1.5 million members dedicated to engaging young people ages 18-29 in our nation’s 

democracy. For more than two decades, Rock the Vote 

has used pop culture, technology, and grassroots 

organizing to register more young people to vote than 

any other organization or campaign – including more 

than a million people in the 2012 elections. A critical 

part of Rock the Vote’s work to increase civic engagement amongst young people is advocating for voting 

and campaign finance laws that restore the Millennial generation’s belief that our democracy can be 

responsive to its people and give our members – and 

all Americans – faith that their interests are being 

represented by those they elect. 

 U.S.PIRG, the federation of state Public Interest 

Research Groups (PIRGs), stands up to powerful 

special interests on behalf of the American public and 

our tens of thousands of members, working to win 

concrete results for our health and our well-being. 

With a strong network of researchers, advocates, 

organizers and students in state capitals across the 

country, we take on the special interests on issues 

such as product safety, public health, political inequality, tax and budget reform and consumer protection, where these interests stand in the way of reform 

and progress. U.S.PIRG has been a long-standing 

advocate for campaign finance reform, working to 

eliminate the undue influence of big money in our elections and ensure that every citizen has a meaningful 

voice in our democratic process. 
6a 

 Working Families Organization (WFO) is a network of state-based progressive coalitions committed 

to a fair economy and a real democracy that works for 

everyone – not just the wealthy and well-connected. 

Formed by community organizations, neighborhood 

activists, and labor unions, WFO represents affiliated 

organizations in New York, Connecticut, New Jersey, 

Maryland, DC, and Oregon as well as more than 

430,000 individual supporters throughout the country. 

WFO has spent years fighting to remove the corrosive 

influence of money in politics and to empower working class and middle class families to have control 

over decisions that impact their lives at the local, 

state, and federal levels. 

 DƝmos is a national public policy center working 

for an America where we all have an equal say in our 

democracy and an equal chance in our economy. Removing barriers to political participation and ensuring full representation of America’s diverse citizenry 

are central to DƝmos’ mission. DƝmos engages in 

litigation, research and advocacy to support campaign 

reforms that protect the integrity of government and 

ensure that the voices of citizens can be heard.