No. 12-536 

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

In The 

Supreme Court of the United States 

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

SHAUN MCCUTCHEON, ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

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

On Appeal From The United States 

District Court For The District Of Columbia 

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

BRIEF OF THE INSTITUTE FOR 

JUSTICE AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS 

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

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

PAUL M. SHERMAN* 

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

(703) 682-9320 

psherman@ij.org 

INSTITUTE FOR JUSTICE

FLORIDA CHAPTER

CLAUDIA MURRAY

999 Brickell Avenue 

Suite 720 

Miami, FL 33131 

(305) 721-1600 

*Counsel of Record

Counsel for Amicus Curiae

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

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

INTEREST OF THE AMICUS ............................ 1 

SUMMARY OF ARGUMENT .............................. 2 

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

 I. The Appearance-of-Corruption Standard 

Is Inconsistent with Representative Government ..................................................... 6 

A. The modern appearance-of-corruption 

standard is an unwarranted expansion 

of conflict-of-interest rules for judges 

and federal employees that have no 

proper application to elected representatives ............................................ 7 

B. When applied to elected representatives, the appearance-of-corruption standard deprives the public of important 

information about the state of the 

government .......................................... 12 

 II. The Appearance-of-Corruption Standard 

Conflicts with Basic First Amendment 

Principles ................................................... 19 

A. The appearance-of-corruption standard 

permits the prohibition of modes of 

speech and association merely because 

the public does not like them .............. 20 

B. The appearance-of-corruption standard 

lacks objectivity and has created confusion in lower courts .......................... 23 
ii 

TABLE OF CONTENTS – Continued 

Page 

C. The appearance-of-corruption standard 

invites reliance on unreliable evidence, 

or on no evidence at all ........................ 27 

CONCLUSION ..................................................... 30 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

Ariz. Free Enter. Club’s Freedom PAC v. Bennett, 

131 S. Ct. 2806 (2011) ................................... 1, 20, 26 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 

(2002) ....................................................................... 21 

Austin v. Mich. Chamber of Commerce, 494 U.S. 

652 (1990) ................................................................ 24 

Boos v. Barry, 485 U.S. 312 (1988) ............................ 24 

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ......... 20 

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

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

(2009) ............................................................. 9, 10, 11 

Citizens United v. FEC, 130 S. Ct. 876 

(2010) ....................................................... 1, 10, 11, 24 

Daggett v. Comm’n on Governmental Ethics & 

Election Practices, 205 F.3d 445 (1st Cir. 

2000) ........................................................................ 28 

Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 

(2007) ......................................................................... 1 

Edenfield v. Fane, 507 U.S. 761 (1993) ...................... 27 

FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 

(2006) ....................................................................... 25 

Green Party of Connecticut v. Garfield, 616 F.3d 

189 (2d Cir. 2010) .................................................... 25 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

Ill. Liberty PAC v. Madigan, No. 12 C 5811, 

2012 U.S. Dist. LEXIS 144259 (N.D. Ill. Oct. 

5, 2012) .............................................................. 29, 30 

Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2002) ............ 26 

McComish v. Bennett, 611 F.3d 510 (9th Cir. 

2010) ........................................................................ 26 

McConnell v. FEC, 540 U.S. 93 (2003) ..................... 1, 5 

Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 

2343 (2011) .............................................................. 11 

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

(2000) ........................................................... 22, 28, 29 

Payne v. Tennessee, 501 U.S. 808 (1991) ..................... 30 

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) ...... 25, 26 

Randall v. Sorrell, 548 U.S. 230 (2006) ................. 1, 26 

Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010) ........ 26 

Snyder v. Phelps, 131 S. Ct. 1207 (2011) ............. 20, 24 

Texas v. Johnson, 491 U.S. 397 (1989) ................. 21, 22 

United States v. Eichman, 496 U.S. 310 (1990) ..... 21, 22 

United States v. Mississippi Valley Generating 

Co., 364 U.S. 520 (1961) ........................................ 7, 8 

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

Carriers, 413 U.S. 548 (1973) ............................... 8, 9 

Ward v. Rock Against Racism, 491 U.S. 781 

(1989) ....................................................................... 24 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Wisc. Right to Life Inc. v. FEC, 546 U.S. 410 

(2006) ......................................................................... 1 

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .......................................... passim

REGULATIONS

Exec. Order No. 11,222, 3 C.F.R. 306 (1964-

1965), revoked Exec. Order No. 12,674 .................... 7 

3 C.F.R. 215 (1990) ....................................................... 7 

OTHER PUBLICATIONS

120 Cong. Rec. S4553 (daily ed. Mar. 27, 1974) ........ 16 

Aesop, The Wolf in Sheep’s Clothing (circa 550 

B.C.) ........................................................................... 4 

Bradley A. Smith, Faculty Assumptions and 

Undemocratic Consequences of Campaign 

Finance Reform, 105 Yale L.J. 1049 (1996) ............ 13 

Cato, Letter VII (1787), reprinted in The AntiFederalist Papers 321 (Ralph Ketcham ed., 

Signet Classics 2003) ................................................ 4 

David M. Primo, Campaign Contributions, and 

Appearances of Corruption, and Trust in 

Government, in Inside the Campaign Battle: 

Court Testimony on the New Reforms (A. 

Corrado et al. eds., 2003) ........................................ 23 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

David M. Primo & Jeffrey Milyo, Campaign 

Finance Laws and Political Efficacy: Evidence 

From the States, 5 Election L.J. 23 (2006) ............. 22 

Federal Election Campaign Act of 1973: Hearings on S. 372 Before the Subcomm. on 

Commc’ns of the S. Comm. on Commerce, 93d 

Cong. 78 (1973) (statement of Sen. Hart) ............... 17 

Fred Wertheimer, Supreme Court Could Create 

System of Legalized Bribery in Washington 

Depending on Its Decision in McCutcheon 

Case, The Huffington Post (Feb. 21, 2013 

5:02 p.m.), http://www.huffingtonpost.com/ 

fred-wertheimer/campaign-finance-supremecourt_b_2734007.html ............................................ 23 

Hearings on S. 372 Before the Subcomm. on 

Privileges & Elections of the S. Comm. on 

Rules & Admin., 93d Cong. 207 (1973) .................. 17 

Hearings on S. 1103, S. 1954, S. 2417, & S.3 

Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 

93d Cong. 33 (1973) ................................................ 16 

James Madison, James Madison’s Notes of the 

Constitutional Convention (July 11, 1787), 

available at http://www.consource.org/document/ 

james-madisons-notes-of-the-constitutionalconvention-1787-7-11 ................................................ 5 

John 7:24 (King James) ................................................ 4 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

John R. Lott, Jr., A Simple Explanation for 

Why Campaign Expenditures Are Increasing: 

The Government Is Getting Bigger, 43 J.L. & 

Econ. 359 (2000) ...................................................... 15 

John Samples, The Fallacy of Campaign Finance Reform (2006) ............................................... 18 

Letter from James Madison to Thomas Jefferson (Oct. 17, 1788) in James Madison: Writings (Jack N. Rakove ed., 1999) ............................. 14 

Letter from John Emerich Edward Dalberg, 

Lord Acton, to Bishop Mandell Creighton 

(Apr. 5, 1887), available at http://oll.liberty 

fund.org/title/2201/203934 ...................................... 14 

Nathaniel Persily and Kelli Lammie, Perceptions of Corruption and Campaign Finance: 

When Public Opinion Constitutes Constitutional Law, 153 U. Pa. L. Rev. 119 (2004) .... 2, 23, 28 

Peter W. Morgan, The Appearance of Impropriety: Ethics Reform and the Blifil Paradoxes, 

44 Stan. L. Rev. 593 (1992) ....................................... 7 

Peter W. Morgan & Glenn H. Reynolds, The 

Appearance of Impropriety: How the Ethic 

Wars Have Undermined American Government, Business, and Society (1997) ........................ 14 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

Pew Research Ctr. For People & the Press, 

Majority Says the Federal Government 

Threatens Their Personal Rights (Jan. 31, 

2013), http://www.people-press.org/2013/01/31/ 

majority-says-the-federal-government-threatenstheir-personal-rights/ .............................................. 31 

Ronald M. Levin, Fighting the Appearance of 

Corruption, 6 Wash. U. J.L. & Pol’y 171 

(2001) ................................................................. 28, 29 

Sanford Levinson, The Embarrassing Second 

Amendment, 99 Yale L.J. 637 (1989) ........................ 5 

Stephen Ansolabehere & James M. Snyder, Jr., 

Money and Institutional Power, 77 Tex. L. 

Rev. 1673 (1999) ...................................................... 14 

Steven M. Simpson, Judicial Abdication and 

the Rise of Special Interests, 6 Chap. L. Rev. 

173 (2003) ................................................................ 12 

The Federalist No. 10 (James Madison) (Clinton 

Rossiter ed., 1961) ................................................... 18 

William Manchester, The Last Lion: Winston 

Spencer Churchill, Visions of Glory 1874-

1932, 348 (1983) ...................................................... 18 
1 

INTEREST OF THE AMICUS

 The Institute is a nonprofit, public-interest legal 

center dedicated to defending the essential foundations of a free society: private property rights, economic and educational liberty, and the free exchange 

of ideas. As part of that mission, the Institute has 

litigated cases across the country challenging laws 

that restrict the ability of Americans to finance 

political speech, including representing petitioners in 

Arizona Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806 (2011). The Institute has also 

filed amicus curiae briefs in several campaign-finance 

cases before this Court, including Citizens United v. 

FEC, 558 U.S. 310 (2010); Davenport v. Washington 

Education Association, 551 U.S. 177 (2007); Randall 

v. Sorrell, 548 U.S. 230 (2006); Wisconsin Right to 

Life, Inc. v. FEC, 546 U.S. 410 (2006); and McConnell 

v. FEC, 540 U.S. 93 (2003). The Institute believes 

that its legal perspective will provide this Court with 

valuable insights regarding the burdens that the 

biennial aggregate contribution limits impose on 

First Amendment rights.1

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

1

 All parties have consented to the filing of this brief. The 

Institute affirms that no counsel for any party authored this 

brief in whole or in part and that no person or entity made a 

monetary contribution specifically for the preparation or submission of this brief. 
2 

SUMMARY OF ARGUMENT 

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

held that restrictions on the financing of political 

speech could be justified by a government interest in 

preventing not just political corruption, but also the 

appearance of such corruption. Since then, this Court 

and lower courts have repeatedly invoked the twin 

concerns of “corruption or its appearance” as a justification for campaign-finance laws. But while these 

interests are generally invoked together, it is clear 

that, from Buckley to the present, courts upholding 

campaign-finance laws have allowed the “appearance 

of corruption” to do virtually all of the heavy lifting, 

and have rarely inquired into whether such laws 

were justified by any record of genuine corruption. 

See, e.g., Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When 

Public Opinion Determines Constitutional Law, 153 

U. Pa. L. Rev. 119, 135 (2004) (noting that “few campaign finance regulations would pass constitutional 

scrutiny” if their defenders had to demonstrate actual 

corruption). 

 This case is no different; the government invokes 

the “interests in combating corruption and its appearance” as a basis for upholding the federal biennial aggregate contribution limits. Mot. to Dismiss or 

Affirm at 17. But despite the fact that a majority of 

states do not have aggregate contribution limits, the 

government below did not identify even a single 

incident of corruption related to large aggregations of 

contributions that were otherwise legal. Instead, this 
3 

is yet another case in which the government expects 

the hypothetical and unquantifiable risk of the “appearance of corruption” to do all the work necessary 

to justify restrictions on political contributions. 

 This brief challenges that expectation, and argues, 

to the contrary, that the appearance-of-corruption 

standard is an insufficient basis for upholding any 

campaign-finance law, including the biennial aggregate limits under review in this case. As this brief will 

explain, the notion that the government has an 

important or compelling interest in preventing the 

supposed appearance of corruption is incompatible 

with basic notions of representative government. In 

many cases, the alleged appearance of corruption is 

indistinguishable from the appearance of partisanship or political bias, both features of our representative system that are not merely unavoidable, but are 

in fact desirable. Further, regulations aimed at preventing the mere appearance of corruption among 

elected officials – even when they target the appearance of quid pro quo corruption – have had the practical effect of depriving citizens of important 

information about the state of their government. 

 The appearance-of-corruption standard is also 

incompatible with First Amendment values. The First 

Amendment demands tolerance for speech that upsets 

people, yet the appearance-of-corruption standard 

allows the suppression of peaceful modes of expression 

simply because people find it upsetting. The First 

Amendment demands objectivity in regulation, yet 

the appearance-of-corruption standard is subjective 
4 

and malleable. And the First Amendment demands 

that government produce evidence to justify its restrictions on speech, yet the appearance-of-corruption 

standard has relieved government of this burden, 

permitting regulation based on anecdote, speculation, 

and conjecture. 

 These fundamental flaws justify abandoning the 

appearance-of-corruption standard. Doing so will not 

only simplify the resolution of this case, it will provide much-needed clarification to lower courts that, 

37 years after Buckley, are still struggling to determine just how much peaceful political activity the 

government may ban in its seemingly never-ending 

quest to eradicate the alleged appearance of corruption. 

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

ARGUMENT 

 Warnings against reaching judgments based on 

appearances stretch back to antiquity. See, e.g., 

Aesop, The Wolf in Sheep’s Clothing (circa 550 B.C.); 

John 7:24 (King James) (“Judge not according to the 

appearance, but judge righteous judgment.”). Equally 

ancient – and well known to the Founding generation 

– are warnings against placing uncritical trust in 

government. See, e.g., Cato, Letter VII (1787), reprinted in The Anti-Federalist Papers 321, 324 (Ralph 

Ketcham ed. 2003) (quoting Demosthenes’ second 

Philippic oration, “[T]here is one common bulwark 

with which men of prudence are naturally provided, 
5 

the guard and security of all people, particularly of 

free states, against the assaults of tyrants – What is 

this? Distrust.”). In keeping with these warnings, 

“[t]he American political tradition is . . . based in large 

measure on a healthy mistrust of the state.” Sanford 

Levinson, The Embarrassing Second Amendment, 99 

Yale L.J. 637, 656 (1989). See also James Madison, 

James Madison’s Notes of the Constitutional Convention (July 11, 1787), available at http://www.consource. 

org/document/james-madisons-notes-of-the-constitutionalconvention-1787-7-11/ (“[A]ll men having power ought 

to be distrusted to a certain degree.”). 

 Nevertheless, in Buckley v. Valeo, this Court concluded that the government had an important interest in preventing not only quid pro quo corruption, 

but even the appearance of such corruption, due to 

the risk that such appearances might ultimately lead 

to distrust in government. 424 U.S. 1, at 26-27 (1976). 

Since then, the appearance-of-corruption standard 

has spawned confusion and contradictory rulings both 

in this Court and lower courts, and it has done so at 

great cost to the marketplace of political ideas. The 

result has been a “never-ending and self-justifying 

process” of greater and greater regulation of peaceful 

political activity. McConnell v. FEC, 540 U.S. 93, 269 

(2003) (Thomas, J., dissenting). 

 This case presents an opportunity to take a 

different tack and provide much-needed clarity to 

campaign-finance jurisprudence. It is an opportunity that this Court should seize. As explained 

below, the government has neither a “compelling” 
6 

nor an “important” interest in combatting the mere 

appearance of corruption. Indeed, the appearance-ofcorruption standard is inconsistent with representative government and with multiple, basic First 

Amendment principles. It is time that it be abandoned. 

I. The Appearance-of-Corruption Standard 

Is Inconsistent with Representative Government. 

 The appearance-of-corruption standard is most 

strongly associated with this Court’s ruling in Buckley 

v. Valeo. As explained below, however, that standard 

actually originated with earlier codes of ethics for 

judges and executive-branch employees that focused 

not on quid pro quo corruption, but on more generic 

bias and favoritism. Buckley extended that standard 

beyond these contexts, into the realm of electoral 

politics. In doing so, the Court ignored the difference 

between bureaucrats and judges, who are expected to 

neutrally administer the law, and elected representatives, who are expected – indeed, elected – to behave 

as biased partisans. But the appearance-of-corruption 

standard does not merely misconceive the role of 

elected representatives in our constitutional system, 

it empowers these incumbent politicians to deprive 

voters of critical information about the state of their 

government and to do so in a way that serves both to 

insulate them from electoral challenge and to perpetuate the abuse of government power. 
7 

A. The modern appearance-of-corruption 

standard is an unwarranted expansion 

of conflict-of-interest rules for judges 

and federal employees that has no 

proper application to elected representatives. 

Buckley was not the first case to discuss “appearances” as they relate to the activities of government 

officials. Early efforts to regulate the “appearance of 

impropriety” can be traced back to 1924, when, in the 

wake of the Black Sox scandal, the American Bar 

Association instructed judges acting in their official 

capacity to avoid “the appearance of impropriety.” See

Peter W. Morgan, The Appearance of Propriety: Ethics 

Reform and the Blifil Paradoxes, 44 Stan. L. Rev. 593, 

597-98 (1992). This standard was later extended to 

federal conflict-of-interest rules that regulated the conduct of executive-branch employees. Id. at 598-603. 

The Kennedy administration, for example, issued 

regulations directing federal employees to avoid even 

the appearance of financial conflicts of interest, id. at 

599-600, and President Johnson issued an executive 

order directing federal employees to avoid any action 

which “might . . . affect[ ] adversely the confidence of 

the public in the integrity of Government.” Exec. 

Order No. 11,222, 3 C.F.R. 306 (1964-1965), revoked

Exec. Order No. 12,674, 3 C.F.R. 215 (1990). 

 This Court considered these sorts of regulations 

in United States v. Mississippi Valley Generating Co., 

364 U.S. 520 (1961), which appears to be the first 

case in which this Court acknowledged something 
8 

like the appearance-of-corruption standard for federal 

employees. Mississippi Valley involved a claim for 

damages for the cancellation of a government contract. The Government defended by arguing that the 

contract was unenforceable because a government 

employee involved in the negotiations had a conflict 

of interest in violation of a federal conflict-of-interest 

statute. In holding the contract unenforceable, the 

Court cited the concern that the public’s “faith in those 

who govern” might be “shattered when high officials 

and their appointees engage in activities which arouse 

suspicions of malfeasance and corruption.” Id. at 562. 

Mississippi Valley was not a First Amendment 

case and was not cited in Buckley v. Valeo, but the 

case that ultimately was cited in Buckley to support 

the appearance-of-corruption standard says much the 

same thing. That case, United States Civil Service 

Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973), dealt with the constitutionality of regulations adopted under the Hatch Act. 

Those regulations provided that “[t]he head of an 

agency may prohibit or limit the participation of an 

employee or class of employees of his agency in [certain partisan political activities], if participation in 

the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests.” Id. at 576 n.21 (emphasis 

added). In upholding those regulations, this Court 

held that “it is not only important that the Government 

and its employees in fact avoid practicing political 

justice, but it is also critical that they appear to the 
9 

public to be avoiding it, if confidence in the system of 

representative Government is not to be eroded to a 

disastrous extent.” Id. at 565. 

 In Buckley v. Valeo, this Court extended the principles announced in Letter Carriers to the realm of 

partisan elections. 424 U.S. at 27. But in doing so this 

Court failed to consider the very different roles 

played by civil servants and judges, on one hand, and 

elected representatives, on the other. Civil servants’ 

and judges’ primary duty is to the law, which they are 

expected – and in many cases constitutionally required 

– to administer neutrally, without bias or favoritism. 

See Letter Carriers, 413 U.S. at 564-655 (“[E]mployees in the Executive Branch of the Government, or 

those working for any of its agencies . . . are expected 

to enforce the law and execute the programs of the 

Government without bias or favoritism for or against 

any political party or group or the members thereof.”); Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 

891 (2009) (Roberts, C.J., dissenting) (“All judges 

take an oath to uphold the Constitution and apply the 

law impartially[.]”). Elected representatives, by contrast, are not expected to be impartial or apolitical. 

Indeed, our entire system of partisan elections is 

premised on the notion that, once in office, elected 

representatives are expected to behave as partisans 

and represent the various constituencies that helped 

them get elected. 

 This Court’s recognition of these different roles is 

well illustrated by this Court’s recent decisions in 

Caperton v. A. T. Massey Coal Co., 556 U.S. 868 
10 

(2009), and Citizens United v. FEC, 558 U.S. 310 

(2010). Both cases involved independent political expenditures. In Caperton, this Court held that, in some 

circumstances, large independent expenditures in 

support of judicial candidates may require those 

candidates to recuse themselves from cases involving 

litigants who funded the expenditures. But this Court 

saw no similar danger from independent expenditures in Citizens United precisely because of the 

nature of representative politics: 

Favoritism and influence are not . . . avoidable in representative politics. It is in the 

nature of an elected representative to favor 

certain policies, and, by necessary corollary, 

to favor the voters and contributors who 

support those policies. It is well understood 

that a substantial and legitimate reason, if 

not the only reason, to cast a vote for, or to 

make a contribution to, one candidate over 

another is that the candidate will respond 

by producing those political outcomes the 

supporter favors. Democracy is premised on 

responsiveness. 

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

540 U.S. at 297 (opinion of Kennedy, J.)) (emphasis 

added). 

 As Citizens United also makes clear, another difference between campaign-finance laws and judicialrecusal standards is the impact of the regulations 

on non-government actors. Campaign-finance laws 

like the biennial aggregate limit impose broad 
11 

prophylactic restrictions and they do so on people who 

are not government actors. This includes not only 

campaign contributors, but also non-incumbent candidates. Conflict-of-interest rules and judicial-recusal 

standards, by contrast, are substantially narrower; 

they are remedial, rather than prophylactic, and they 

limit only the behavior of government actors. See

Citizens United, 558 U.S. at 360 (“Caperton’s holding 

was limited to the rule that the judge must be 

recused, not that the litigant’s political speech could 

be banned.”); cf. Nev. Comm’n on Ethics v. Carrigan, 

131 S. Ct. 2343, 2347-50 & n.3 (2011) (discussing the 

history of legislative- and judicial-recusal rules, and 

noting that “restrictions on . . . speech during elections are a different matter”). 

 In short, Buckley’s extension of the appearanceof-corruption standard from federal employees and 

judges to elected officials was too hasty. It has tended 

to hold elected officials to an appearance of impartiality that is not applicable to elected representatives, 

and it has ignored the fact that the burdens of campaign-finance laws are not borne by representatives 

alone, but are also borne by the contributors who are 

prevented from associating with the candidates of 

their choice. 
12 

B. When applied to elected representatives, 

the appearance-of-corruption standard 

deprives the public of important information about the state of the government. 

 As discussed above, much of what proponents of 

campaign-finance restrictions deride as the “appearance of corruption” is nothing more than the generic 

favoritism and influence that is at the heart of representative politics. But even to the extent the public is 

upset by what it believes to be the appearance of quid 

pro quo corruption, that problem is less about campaign financing and more about the unchecked ability 

of politicians to reward powerful supporters. See 

Steven M. Simpson, Judicial Abdication and the Rise 

of Special Interests, 6 Chap. L. Rev. 173, 173 (2003) 

(“[M]odern government has a lot to offer, and its 

constituents are increasingly all too eager to pursue 

it.”). Some of those supporters will be financial backers, but others will be heads of civic or advocacy 

groups, prominent politicians, celebrities, or other 

sources of election-year support. Financial supporters 

are surely the most easily identified members of this 

cohort, but there is absolutely no reason to believe 

they are its only members. Restrictions on campaign 

financing designed to eliminate the “appearance of 

corruption” do not address the core problem of seemingly corrupt favoritism – they simply cover up its 

most visible manifestation, allowing the rest to 

continue unobserved. 
13 

 Covering up the potential for abuse of government power in order to lull the public into a false 

sense of trust is not a legitimate use of government 

power. To the contrary, as explained below, the suspicion engendered by the appearance of corruption is a 

healthy part of our constitutional system; it makes 

citizens alert to opportunities for abuse and enables 

voters to respond at the ballot box. Government 

efforts to short-circuit this process by stamping out 

the appearance of corruption deprive voters of necessary information, and, not coincidentally, make it 

more difficult to remove incumbents from office. 

 It is important to note, first, that the appearanceof-corruption standard only does work when the 

underlying activities are not actually corrupt. “If the 

campaign finance system leads to actual corruption, 

then that may be a constitutionally sufficient justification for the state to infringe on free speech rights, 

in which case the ‘appearance of corruption’ basis is 

superfluous.” Bradley A. Smith, Faulty Assumptions 

and Undemocratic Consequences of Campaign Finance 

Reform, 105 Yale L.J. 1049, 1067 n.113 (1996). Thus, 

the question raised by the appearance-of-corruption 

standard is whether the government has a compelling 

or important interest in prohibiting peaceful political 

activity that is not, in fact, corrupt, but that nevertheless raises the public’s suspicions. 

 The answer to that question is surely no. The 

appearance of quid pro quo corruption does not 

arise in a vacuum; it arises where there are opportunities to abuse government power for private gain. 
14 

Antecedent to this, however, is government power 

itself, which carries with it the opportunity for such 

abuse. See Letter from John Emerich Edward 

Dalberg, Lord Acton, to Bishop Mandell Creighton 

(Apr. 5, 1887) (“Power tends to corrupt, and absolute 

power corrupts absolutely.”), available at http://oll. 

libertyfund.org/title/2201/203934; Letter from James 

Madison to Thomas Jefferson (Oct. 17, 1788), in James 

Madison: Writings, at 418, 421 (Jack N. Rakove ed. 

1999) (“Wherever there is an interest and power to do 

wrong, wrong will generally be done. . . .”). For this 

very reason, if voters believe that political contributions appear corrupt, they have received an important 

signal; they have been reminded of the dangers 

that are inherent in whatever amount of power has 

been delegated to the government. Cf. Stephen 

Ansolabehere & James M. Snyder, Jr., Money and 

Institutional Power, 77 Tex. L. Rev. 1673, 1673 (1999) 

(arguing that political money will tend to follow 

institutional power). 

 Because government power in the United States 

is supposed to be constrained by constitutional limits, 

the public has an interest in monitoring the appearance of corruption. If the appearance of corruption is 

on the rise, it suggests that government power has 

exceeded those limits. And, indeed, “the abandonment 

of limitations on federal power has led to greater 

special-interest pressure in no small part simply 

because it has made the federal government more 

attractive to lobby.” Peter W. Morgan & Glenn H. 

Reynolds, The Appearance of Impropriety: How the 
15 

Ethics Wars Have Undermined American Government, 

Business, and Society 193 (1997). See also John R. 

Lott, Jr., A Simple Explanation for Why Campaign 

Expenditures Are Increasing: The Government Is 

Getting Bigger, 43 J.L. & Econ. 359 (2000) (arguing 

that growth in campaign spending is attributable, in 

significant part, to growth in the federal budget). 

This, in turn, “has caused many Americans to fear, 

rightly, that many federal programs are simply 

disguised ways for the well-connected to pick their 

pockets, or otherwise push them around.” Morgan & 

Reynolds, supra, at 193. 

 If the public believes that government has exceeded its constitutional limits and that public power 

is routinely being used to serve private ends, the 

public may well be motivated to take political action 

to restore those limits. Thus, the appearance of quid 

pro quo corruption might be thought of as the canary 

in the constitutional coal mine. Just as coal miners 

would understandably be alarmed to see their canary 

looking unwell, Americans are understandably 

alarmed by what they believe to be the appearance of 

quid pro quo corruption. But what the appearanceof-corruption standard ignores is that these are 

situations in which people should be alarmed. The 

government is no more justified in eliminating the 

appearance of corruption to improve public confidence 

in democracy than a mine foreman would be justified 

in removing an unwell canary to improve employee 

confidence in safety conditions. In either case, the 

underlying danger – be it unchecked government 
16 

power to dispense political favors or toxic gas – remains. The only difference is that those who stand to 

be harmed have been made unaware of that danger. 

 In such a situation, one cannot help but question 

Congress’s motives in attempting to eliminate the 

appearance of corruption. And, indeed, the debates 

surrounding the enactment of the Federal Election 

Campaign Act, which first imposed biennial aggregate limits on contributions to federal candidates, 

suggest that the harm most feared by many of its 

supporters was not an abstract harm to democracy, 

but rather the harm to their own reputations that 

would be caused by their ability to dispense political 

favors: 

• Senator George McGovern: “[T]hose of 

us who run for office can profess that the 

campaign contributions we receive do 

not in any way control our votes, but I 

venture to say that not many believe it.” 

120 Cong. Rec. S4553 (daily ed. Mar. 27, 

1974). 

• Senator Hugh Scott: “Regardless of the 

motives of the donor, or the intentions of 

the recipient candidate, there appears to 

be an appearance of impropriety. I regret 

that this is so, because such charges are 

usually unfounded, but like the proverbial wife of Julius Caesar, we must be 

above and beyond reproach.” Hearings 

on S. 1103, S. 1954, S. 2417, & S.3 Before 

the Subcomm. on Privileges & Elections 
17 

of the S. Comm. on Rules & Admin., 93d 

Cong. 33 (1973). 

• Senator James Abourezk: “It is really 

the appearance of corruption that harms 

us, I think, more than any corruption 

that does go on, because there are certain controversial amendments up today 

that I would like to vote for, but because 

I received contributions from dairy 

farmers around the country, I am almost 

afraid to vote for them because it is set 

up now in the press that anybody who 

does vote for them who has taken money 

from the dairy farmers has been bought 

off.” Hearings on S. 372 Before the 

Subcomm. on Privileges & Elections of 

the S. Comm. on Rules & Admin., 93d 

Cong. 207 (1973) (emphasis added). 

• Senator Philip Hart: “I like to think that 

I have never been influenced by a political contribution. But I am darn sure that 

there are many people in Michigan who 

believe I have been. I am just certain 

that when they look at my returns and 

see substantial labor contributions that 

they say, ‘That is why he votes the way 

he does.’ ” Federal Election Campaign 

Act of 1973: Hearings on S. 372 Before 

the Subcomm. on Commc’ns of the 

S. Comm. on Commerce, 93d Cong. 78 

(1973). 

 To be sure, elected officials may well prefer to 

wield government power without fear that voters will 
18 

become suspicious of them. See John Samples, The 

Fallacy of Campaign Finance Reform 112 (2006) 

(observing that, under the appearance-of-corruption 

standard, “[t]he presumption of liberty becomes . . . a 

concern of public relations.”). But it seems unlikely 

that the Founders would have considered promoting 

this sort of trust to be a sufficient basis for restricting 

individual liberty. Indeed, the Founders were well 

aware that government power could be used to benefit favored political factions but wisely rejected restrictions on liberty as a means of addressing that 

problem: 

Liberty is to faction what air is to fire, an 

aliment without which it instantly expires. 

But it could not be a less folly to abolish 

liberty, which is essential to political life, 

because it nourishes faction than it would be 

to wish the annihilation of air, which is 

essential to animal life, because it imparts 

to fire its destructive agency. 

The Federalist No. 10, at 73 (James Madison) (Clinton 

Rossiter ed., 1961). 

 It may be the case that the appearance of corruption is an unavoidable symptom of having an 

expansive government that wields enormous power to 

dispense political favors or punishment. But unpleasant symptoms, while distressing to those who 

suffer from them, also make those people more acutely aware of underlying problems and, in turn, allow 

them to take action to address those problems. Cf. 

William Manchester, The Last Lion: Winston Spencer 
19 

Churchill, Visions of Glory 1874-1932, 348 (1983) 

(quoting Churchill, “Criticism may not be agreeable, 

but it is necessary. It fulfills the same function as 

pain in the human body. It calls attention to an 

unhealthy state of things.”). The appearance-ofcorruption standard has allowed government to cut 

off this process in the political realm, undermining 

the ability of the People to monitor the growth of 

government power and the dangers that attend it. It 

is doubtful that those who wrote and ratified the 

Constitution would have considered the concealment 

of evidence of the expansion of government from the 

public to be even a legitimate interest – let alone an 

“important” or “compelling” one. 

II. The Appearance-of-Corruption Standard 

Conflicts with Basic First Amendment 

Principles. 

 In addition to undermining the ability of Americans to monitor the growth of government power, 

the appearance-of-corruption standard conflicts with 

several fundamental First Amendment principles. As 

discussed below, the appearance-of-corruption standard encourages the prohibition of modes of political 

expression based entirely on public opinion, is inherently subjective, and invites reliance on unreliable 

evidence (or even pure speculation and conjecture). 

In short, the appearance-of-corruption standard provides none of the protection that the First Amendment demands. 
20 

A. The appearance-of-corruption standard 

permits the prohibition of modes of 

speech and association merely because 

the public does not like them. 

 There are few propositions more fundamental in 

First Amendment law than that political speech and 

association cannot be restricted merely because they 

are upsetting or unpopular. See, e.g., Snyder v. Phelps, 

131 S. Ct. 1207, 1220 (2011) (“As a Nation we have 

chosen . . . to protect even hurtful speech on public 

issues to ensure that we do not stifle public debate.”); 

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 

131 S. Ct. 2806, 2828 (2011) (“[T]he whole point of the 

First Amendment is to protect speakers against unjustified government restrictions on speech, even when 

those restrictions reflect the will of the majority.”); 

Boy Scouts of Am. v. Dale, 530 U.S. 640, 660 (2000) 

(“The First Amendment protects expression, be it of 

the popular variety or not.”). The appearance-ofcorruption standard turns this fundamental principle 

on its head by allowing speech and association to be 

restricted based exclusively on the fact that the public – or the subset of the public vocal enough to capture the attention of legislators – does not care for it. 

 As discussed above, supra I.B., the appearanceof-corruption standard only does work when the 

underlying activities are not demonstrably corrupt. 

And it is no answer to say that the appearance-ofcorruption standard is necessary because genuine 

corruption is difficult to detect. This Court has, in 

contexts far removed from the political speech that 
21 

lies at the core of First Amendment protection, 

squarely rejected the notion that “[p]rotected speech 

. . . become[s] unprotected merely because it resembles the latter.” Ashcroft v. Free Speech Coal., 535 

U.S. 234, 255 (2002) (rejecting argument that prohibition on virtual child pornography was necessary 

because of the difficulty of distinguishing it from 

actual child pornography). Thus, regulating appearances cannot be justified as a prophylaxis against 

actual corruption. 

 Instead, the appearance-of-corruption standard is 

premised on the notion that some modes of peaceful 

political speech and association – such as the making 

of political contributions – may be prohibited based 

purely on the fact that the public is disturbed by 

those modes of speech and association. But this, too, 

runs headlong into well established First Amendment 

precedent, most notably, Texas v. Johnson, 491 U.S. 

397 (1989), and United States v. Eichman, 496 U.S. 

310 (1990). 

 In Texas v. Johnson, this Court considered the 

constitutionality of a Texas law that prohibited flag 

desecration. Texas defended the law by arguing, in 

part, that the law did not seek to prohibit all words or 

expressive conduct critical of the flag or national 

unity, but rather that the law merely prohibited a 

particularly offensive mode of expressive conduct 

that, if left unchecked, may threaten national unity. 

491 U.S. at 416. This Court rejected that argument, 

observing that the “enduring lesson [of this Court’s 

decisions] that the government may not prohibit 
22 

expression simply because it disagrees with its message, is not dependent on the particular mode in which 

one chooses to express an idea.” Id. at 416. 

 This Court reaffirmed that lesson the following 

term, when, in Eichman, it invalidated a similar 

federal prohibition on flag desecration. As the Court 

noted, while government may seek to foster “[n]ational unity . . . by persuasion and example,” it may 

not do so by proscribing otherwise peaceful political 

speech and association because of its “likely communicative impact.” 496 U.S. at 318 (quotation marks 

and citations omitted). 

 The appearance-of-corruption standard cannot be 

reconciled with the principles announced in these 

cases. If expressive conduct cannot be prohibited on 

the grounds that it will undermine “national unity,” 

then surely it cannot be prohibited on the virtually 

identical grounds that it will lead to “cynical assumption[s]” about government. Compare Johnson, 491 

U.S. at 413, with Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377, 390 (2000). Nevertheless, that is the aberrant holding of this Court’s campaign-finance cases. 

As in Eichman, it is a holding that is “foreign to the 

First Amendment.” 496 U.S. at 318.2

2

 To make matters worse, this holding is also in conflict 

with the overwhelming majority of empirical studies, which have 

found virtually no relationship between trust in government or 

political efficacy and political contributions or spending. See, 

e.g., David M. Primo & Jeffrey Milyo, Campaign Finance Laws 

and Political Efficacy: Evidence From the States, 5 Election L.J. 

(Continued on following page) 
23 

B. The appearance-of-corruption standard 

lacks objectivity and has created confusion in lower courts. 

 The danger that political activity will be banned 

merely because it is unpopular is exacerbated by the 

fact that the appearance-of-corruption standard is 

wholly indeterminate. If the decades-long debate 

over campaign-finance law has proved anything, it is 

that the “appearance of corruption” is entirely in the 

eye of the beholder. For some observers – including 

this amicus – political contributions are a venerable 

form of political association. Others – some of whom 

will undoubtedly file amicus briefs defending the 

constitutionality of the biennial aggregate contribution limits – denigrate political contributions as 

little more than “legalized bribery.” See, e.g., Fred 

Wertheimer, Supreme Court Could Create System of 

Legalized Bribery in Washington Depending on Its 

Decision in McCutcheon Case, The Huffington Post 

(Feb. 21, 2013 5:02 p.m.), http://www.huffingtonpost. 

23 (2006) (finding no significant effect of campaign-contribution 

limits on political efficacy); Nathaniel Persily & Kelli Lammie, 

Perceptions of Corruption and Campaign Finance: When Public 

Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119, 

122 (2004) (concluding that “trends in general attitudes of 

corruption seem unrelated to anything happening in the campaign finance system”); David M. Primo, Campaign Contributions, and Appearances of Corruption, and Trust in Government, 

in Inside the Campaign Battle: Court Testimony on the New 

Reforms, 285, 290 (A. Corrado et al. eds., 2003) (finding virtually 

no relationship between campaign spending and trust in government during the period after 1980). 
24 

com/fred-wertheimer/campaign-finance-supreme-court_ 

b_2734007.html. 

 These disagreements are not surprising. The 

members of this very Court, after all, have long 

disagreed on what constitutes actual corruption. 

Compare, e.g., Austin v. Mich. Chamber of Commerce, 

494 U.S. 652, 659-60 (1990) (holding that “distortion” 

caused by corporate political spending is a form of 

corruption) with Citizens United, 558 U.S. 310, 364 

(2010) (rejecting the anti-distortion theory of corruption). The even more amorphous concept of the “appearance of corruption” is even less susceptible to 

objective evaluation. 

 The inherent subjectivity of the appearance-ofcorruption standard makes it incompatible with the 

First Amendment. This Court has repeatedly stressed 

the importance of objective standards when First 

Amendment rights are at stake. See, e.g., Snyder, 131 

S. Ct. at 1219 (“ ‘Outrageousness,’ however, is a highly 

malleable standard with ‘an inherent subjectiveness 

about it which would allow a jury to impose liability 

on the basis of the jurors’ tastes or views, or perhaps 

on the basis of their dislike of a particular expression.’ ” (citing Hustler Magazine v. Falwell, 485 U.S. 

46, 55 (1988))); Ward v. Rock Against Racism, 491 

U.S. 781, 793 (1989) (“Any governmental attempt to 

serve purely esthetic goals by imposing subjective 

standards of acceptable sound mix on performers 

would raise serious First Amendment concerns. . . .”); 

Boos v. Barry, 485 U.S. 312, 322 (1988) (“A ‘dignity’ 

standard . . . is so inherently subjective that it would 
25 

be inconsistent with ‘our longstanding refusal to [punish speech] because the speech in question may have 

an adverse emotional impact on the audience.’ ”). 

Indeed, the importance of objectivity in regulation 

has been expressly noted in the campaign-finance 

context. See FEC v. Wisc. Right to Life, Inc., 551 U.S. 

449, 468 (2006) (plurality opinion) (“To safeguard 

th[e] liberty [protected by the First Amendment], the 

proper standard for an as-applied challenge to BCRA 

§ 203 must be objective, focusing on the substance of 

the communication rather than amorphous considerations of intent and effect.” (emphasis added)). 

 Without objective standards against which to 

evaluate restrictions on political speech and association, lower courts can reach opposite conclusions even 

when cases involve virtually identical laws. And, 

indeed, this is precisely what has happened under the 

appearance-of-corruption standard. The decisions of 

the Second and Fourth Circuits in Green Party of 

Connecticut v. Garfield, 616 F.3d 189 (2d Cir. 2010), 

and Preston v. Leake, 660 F.3d 726 (4th Cir. 2011), are 

illustrative. Both cases involved total prohibitions on 

political contributions from registered lobbyists. The 

Second Circuit concluded that “there is insufficient 

evidence to demonstrate that all lobbyist contributions give rise to an appearance of corruption,” Green 

Party of Conn., 616 F.3d at 207, and thus struck down 

Connecticut’s prohibition. The Fourth Circuit, by 

contrast, concluded that “[a]ny payment made by a 

lobbyist to a public official, whether a campaign 

contribution or simply a gift, calls into question the 
26 

propriety of the relationship, and therefore North 

Carolina could rationally adjudge that it should ban 

all payments.” Preston, 660 F.3d at 737. 

 This is not the only instance in which federal 

courts, attempting to apply the appearance-ofcorruption standard to campaign-finance laws, have 

reached divergent outcomes. This Court in Arizona 

Free Enterprise Club, 131 S. Ct. 2806, was forced to 

resolve a similar circuit split regarding the constitutionality of public-financing “matching funds” programs. Compare McComish v. Bennett, 611 F.3d 510, 

526 (9th Cir. 2010) (upholding system of publicfinancing matching funds because “it is clear that the 

Act’s anticorruption interest is further promoted by” 

incentivizing participation in the public-financing 

system) with Scott v. Roberts, 612 F.3d 1279, 1292 

(11th Cir. 2010) (striking down system of publicfinancing matching funds where “[t]he parties ha[d] 

not sufficiently explained how the Florida public 

financing system further[ed] the anticorruption 

interest”). And in Randall v. Sorrell, this Court was 

forced to reverse a ruling by the Second Circuit, 

which had concluded, in conflict with decades of 

precedent, that limits on campaign expenditures were 

a permissible means of combatting the appearance of 

corruption. See 548 U.S. 230, 244 (2006) (plurality 

opinion), rev’g Landell v. Sorrell, 382 F.3d 91 (2d Cir. 

2002). 

 Federal courts operating in good faith will, of 

course, sometimes disagree about the constitutionality 

of laws that restrict speech and association. But the 
27 

risk of their doing so is increased – and their task 

made unnecessarily difficult – when the legal standards they are instructed to apply are by their very 

nature indeterminate. The appearance-of-corruption 

standard, which provides insufficient guidance to 

be applied predictably or objectively, is just such a 

standard. 

C. The appearance-of-corruption standard 

invites reliance on unreliable evidence, 

or on no evidence at all. 

 Because the appearance-of-corruption standard is 

itself indeterminate, it should come as no surprise 

that courts attempting to determine the presence or 

absence of the appearance of corruption are often at 

sea when it comes to what evidence can or should 

be considered. And although this Court has stated 

in other contexts that the government’s burden in 

First Amendment cases cannot be carried “by mere 

speculation or conjecture,” Edenfield v. Fane, 507 

U.S. 761, 770 (1993), that is precisely the effect that 

the appearance-of-corruption standard has had. 

 The evidence-free nature of the appearance-ofcorruption standard can be seen in the procedural 

posture of this case, which was appealed to this Court 

from a motion to dismiss, and in the government’s 

own briefing, which does not cite even a single incident 

of actual corruption associated with large aggregate

contributions. Because a majority of states do not have 

aggregate contribution limits, such evidence would 
28 

presumably be easy to demonstrate if it existed. But 

under the appearance-of-corruption standard, such 

showings are almost never required. 

 This is well illustrated by federal courts’ reliance 

on anecdotal reports in newspapers to establish the 

appearance of corruption. This occurred most notably 

in Nixon v. Shrink Missouri Government PAC, in 

which this Court upheld Missouri’s campaigncontribution limits largely on the basis of newspaper 

clippings. 528 U.S. 377, 393-94 (2000). “Whether the 

newspaper clippings were accurate or inaccurate, 

well-balanced or cockeyed, apparently did not matter, 

because they at least showed what people believed

[about the role of money in politics].” Ronald M. 

Levin, Fighting the Appearance of Corruption, 6 Wash. 

U. J.L. & Pol’y 171, 176 (2001). See also Persily & 

Lammie, supra n.2, at 129-30 (describing the “typical 

and typically vacuous” newspaper articles submitted 

as evidence of the appearance of corruption in Daggett v. Comm’n on Governmental Ethics & Election 

Practices, 205 F.3d 445 (1st Cir. 2000)). 

Nixon’s reliance on newspaper reports highlights 

another troubling aspect of the appearance-ofcorruption standard: the danger that proponents of 

campaign-finance restrictions can, in effect, invent 

evidence through their own advocacy. “[T]he most 

zealous and aggressive advocates of restriction can 

make accusations, whether well founded in fact or 

not, and then use the very fact that some people 

believe the charges as a reason to justify regulation.” 
29 

Levin, supra, at 178. In other words, “[p]olitical 

combat can create its own appearances.” Id.

Nixon also demonstrates that the claim that a 

law combats the appearance of corruption is largely 

immune to being falsified. When the plaintiffs in 

Nixon “relied on political science studies to attack the 

law, Justice Souter did not examine them at any 

length, in part because of ‘the absence of any reason 

to think that public perception has been influenced by 

the studies.’ ” Id. at 177 (quoting Nixon, 528 U.S. at 

395). As one scholar has noted, this approach makes 

evidence virtually irrelevant under the appearanceof-corruption standard: 

If limits on contributions are permissible 

only in times and places where wide segments 

of the public believe that special interests 

exert too much influence over politics, then 

they are permissible in all times and places. 

The public always believes this, and it always 

will. Unless the Court modifies its language, 

the requirement of proof of need for restrictions might as well be rescinded entirely. 

Id. at 178. 

 The absence of any serious evidentiary requirement under the appearance-of-corruption standard has, 

in other cases, led to inexplicable legal conclusions. 

In Illinois Liberty PAC v. Madigan, for example, the 

federal district court for the Northern District of 

Illinois concluded that it was likely constitutional for 

Illinois to impose a system of differential contribution 
30 

limits under which individual contributors could contribute only half the amount to political candidates 

that corporations were permitted to contribute. See 

No. 12 C 5811, 2012 U.S. Dist. LEXIS 144259 (N.D. 

Ill. Oct. 5, 2012) (denying motion for preliminary 

injunction). There was no evidence that individual 

contributions appeared more corrupt than corporate 

contributions; indeed, the court does not appear to 

have even paused to consider the question. Such is 

constitutional scrutiny under the appearance-ofcorruption standard. 

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

CONCLUSION 

 “[W]hen governing decisions are unworkable or 

are badly reasoned, ‘this Court has never felt constrained to follow precedent.’ ” Payne v. Tennessee, 501 

U.S. 808, 827 (1991) (quoting Smith v. Allwright, 321 

U.S. 649, 655 (1994)). Buckley v. Valeo, to the extent it 

held that the government has a compelling interest in 

restricting peaceful political activity to combat the 

mere appearance of corruption, is just such a decision. By any measure, the appearance-of-corruption 

standard announced in Buckley has failed to deliver 

on any of the promises put forth by proponents of 

restrictive campaign-finance laws. It has given the 

government virtually a free hand to regulate or 

entirely ban peaceful political activity based on only 

the flimsiest evidence, in any at all. In exchange, 

Americans have received nothing – after more 

than 35 years of legislative attempts to outlaw the 
31 

appearance of corruption, Americans’ trust in government “remains mired near a historic low.” Pew Research Ctr. For People & the Press, Majority Says the 

Federal Government Threatens Their Personal Rights

(Jan. 31, 2013), http://www.people-press.org/2013/01/31/ 

majority-says-the-federal-government-threatens-theirpersonal-rights/. This Court can undo this pointless 

damage to Americans’ First Amendment rights 

by holding that combating the mere appearance of 

corruption is not a compelling or important government interest, and that the federal biennial aggregate 

limits therefore cannot survive either strict or intermediate scrutiny. 

Respectfully submitted, 

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

PAUL M. SHERMAN* 

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

(703) 682-9320 

psherman@ij.org 

INSTITUTE FOR JUSTICE

FLORIDA CHAPTER

CLAUDIA MURRAY

999 Brickell Avenue 

Suite 720 

Miami, FL 33131 

(305) 721-1600 

*Counsel of Record

Counsel for Amicus Curiae