No. 19-234 

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

In The 

Supreme Court of the United States 

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

LIBERTARIAN NATIONAL COMMITTEE, INC., 

Petitioner, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

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

On Petition For A Writ of Certiorari 

To The United States Court Of Appeals 

For The District Of Columbia Circuit 

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

BRIEF AMICUS CURIAE OF 

GOLDWATER INSTITUTE 

IN SUPPORT OF PETITIONER 

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

TIMOTHY SANDEFUR

JACOB HUEBERT* 

SCHARF-NORTON CENTER FOR 

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd. 

Phoenix, AZ 85004 

(602) 462-5000 

litigation@goldwaterinstitute.org 

*Counsel of Record

Counsel for Amicus Curiae Goldwater Institute 

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

WWW.COCKLELEGALBRIEFS.COM 
i 

QUESTIONS PRESENTED 

 1. In the asserted interest of preventing quid pro 

quo corruption, the Federal Election Commission limits the amount of money that a political party may receive each year from a deceased donor. 

 Over the course of his life, Joseph Shaber made 

various small donations to the Libertarian Party. He 

was unknown to party officials and candidates. Upon 

his death, the party learned that Shaber had unconditionally left it $235,575.20. Does limiting the size of Joseph Shaber’s uncoordinated testamentary bequest to 

the party violate the party’s First Amendment right to 

free speech? 

 2. In 2014, Congress imposed content-based 

spending restrictions on contributions to political parties. A national political party committee may now 

spend only 10% of an individual’s maximum annual 

contribution on unrestricted speech. Of an individual’s 

maximum annual contribution, 30% must be spent on 

presidential nominating conventions, 30% on election 

contests and other legal proceedings, and 30% on party 

headquarters buildings. 52 U.S.C. §§ 30116(a)(1)(B), 

(a)(9), 30125(a)(1). Money being fungible, these restrictions negligibly impact, if at all, party committees 

that would otherwise spend money from general funds 

on such government-preferred speech. Party committees that cannot or do not prioritize government-preferred spending purposes can raise and spend as little 

as 10% of each donor’s otherwise-allowable contribution. 
ii 

QUESTIONS PRESENTED—Continued 

 Do 52 U.S.C. §§ 30116(a)(1)(B), (a)(9) and 30125(a)(1) 

violate the First Amendment right of free speech by 

conditioning the size of contributions to a political 

party on the content of the party’s speech? 
iii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED .................................. i 

TABLE OF CONTENTS ........................................ iii 

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

IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................... 1 

INTRODUCTION AND SUMMARY OF ARGUMENT .................................................................. 2 

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

 I. The Court should grant certiorari to ensure 

that all campaign-finance restrictions receive rigorous scrutiny ................................. 3 

 II. The Court should grant certiorari to ensure 

that courts require the government to justify any campaign-finance restriction with 

evidence ........................................................ 12 

CONCLUSION ..................................................... 19 
iv 

TABLE OF AUTHORITIES 

Page 

CASES

1A Auto, Inc. v. Dir. of the Office of Campaign and 

Political Fin., 105 N.E.3d 1175 (Mass. 2018), 

cert. denied, 139 S. Ct. 2613 (2019) .................... 9, 18 

Ariz. Free Enterprise Club’s Freedom Club PAC 

v. Bennett, 564 U.S. 721 (2011) .............. 1, 4, 8, 11, 16 

Blanchard v. Bergeron, 489 U.S. 87 (1989) ................ 14 

Buckley v. Valeo, 424 U.S. 1 (1976) ......................... 5, 17 

Casino Ass’n of La. v. State, 820 So.2d 494 (La. 

2002) ........................................................................ 18 

Citizens United v. FEC, 558 U.S. 310 (2010) .......... 2, 12 

Daggett v. Comm’n on Govt’l Ethics & Election 

Practices, 205 F.3d 445 (1st Cir. 2000) .................... 16 

Davis v. FEC, 554 U.S. 724 (2008) ................................ 4 

Edenfield v. Fane, 507 U.S. 761 (1993) ....................... 13 

Frank v. City of Akron, 290 F.3d 813 (6th Cir. 

2002) ........................................................................ 18 

Holmes v. FEC, 875 F.3d 1153 (D.C. Cir. 2017), 

cert. denied, 138 S. Ct. 2018 (2018) ........................ 18 

Ill. Liberty PAC v. Madigan, 904 F.3d 463 (7th 

Cir. 2018), cert. denied sub nom. Ill. Liberty 

PAC v. Raoul, 139 S. Ct. 1544 (2019) ................ 10, 18 

Iowa Right to Life Comm., Inc. v. Tooker, 717 

F.3d 576 (8th Cir. 2013) ........................................... 11 

Knox v. SEIU Local 1000, 567 U.S. 298 (2012) ............ 3 
v 

TABLE OF AUTHORITIES—Continued 

Page 

Ky. Right to Life, Inc. v. Terry, 108 F.3d 637 (6th 

Cir. 1997) ................................................................. 18 

Lair v. Motl, 873 F.3d 1170 (9th Cir. 2017), cert. 

denied sub nom. Lair v. Mangan, 139 S. Ct. 

916 (2019) .......................................................... 14, 17 

McCutcheon v. FEC, 572 U.S. 185 (2014) ........... passim

Minn. Citizens Concerned for Life, Inc. v. Kelley, 

427 F.3d 1106 (8th Cir. 2005) .................................. 16 

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

(2000) ................................................................. 13, 17 

Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011) ........ 15 

Police Dep’t of Chi. v. Mosley, 408 U.S. 92 (1972) ..... 2, 4 

Protect My Check, Inc. v. Dilger, 176 F. Supp. 3d 

685 (E.D. Ky. 2016) .................................................... 1 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ....... 4, 5 

Renton v. Playtime Theaters, Inc., 475 U.S. 41 

(1986) ....................................................................... 10 

State v. Alaska Civil Liberties Union, 978 P.2d 

597 (Alaska 1999).................................................... 14 

United States v. Alvarez, 567 U.S. 709 (2012) ............ 19 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), cert. 

denied sub nom. Miller v. FEC, 136 S. Ct. 895 

(2016) ....................................................................... 10 
vi 

TABLE OF AUTHORITIES—Continued 

Page 

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 

(2015) ......................................................................... 6 

Zimmerman v. City of Austin, 881 F.3d 378 (5th 

Cir. 2016), cert. denied, 139 S. Ct. 639 (2018) ......... 15 

STATUTES

52 U.S.C. § 30116(a)(1)(B) ............................................ 3 

52 U.S.C. § 30116(a)(9) ................................................. 3 

52 U.S.C. § 30125(a)(1) ................................................. 3 

RULES

Supreme Court Rule 37.2(a)......................................... 1 

Supreme Court Rule 37.6 ............................................. 1 

OTHER AUTHORITIES

160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) 

(statement of Rep. Boehner) ................................... 14 

160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014) 

(statement of Sen. Reid) .......................................... 13 

Nathan Persily & Kelli Lammie, Perceptions of 

Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 

153 U. Pa. L. Rev. 119 (2004) ................................... 16 

Richard A. Epstein, Property, Speech, and the Politics of Distrust, 59 U. Chi. L. Rev. 41 (1992) ........... 12 
vii 

TABLE OF AUTHORITIES—Continued 

Page 

Ronald M. Levin, Fighting the Appearance of Corruption, 6 Wash. U. J.L. & Pol’y 171 (2001) ............. 17 

The Federalist No. 51 (J. Madison) (J. Cooke ed. 

1961) ........................................................................ 12 
1 

IDENTITY AND INTEREST 

OF AMICUS CURIAE1

 The Goldwater Institute was established in 1988 

as a nonpartisan public policy and research foundation 

devoted to advancing the principles of limited government, individual freedom, and constitutional protections through litigation, research, policy briefings, and 

advocacy. Through its Scharf-Norton Center for Constitutional Litigation, the Institute litigates cases and 

files amicus briefs when its or its clients’ objectives are 

directly implicated. 

 The Institute devotes substantial resources to defending the vital constitutional principle of freedom 

of speech. The Institute has litigated and won cases 

challenging unconstitutional campaign-finance restrictions, including Arizona Free Enterprise Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) 

(matching-funds provision violated First Amendment) 

and Protect My Check, Inc. v. Dilger, 176 F. Supp. 3d 

685 (E.D. Ky. 2016) (scheme imposing different limits 

on different classes of donors violated Equal Protection 

Clause). 

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

1 Pursuant to Supreme Court Rule 37.2(a), all parties have 

consented to the filing of this brief. Counsel of record for all parties received notice at least 10 days prior to the due date of the 

Amicus Curiae’s intention to file this brief. Pursuant to Supreme 

Court Rule 37.6, counsel for amicus curiae affirms that no counsel 

for any party authored this brief in whole or in part and that no 

person or entity, other than amicus, their members, or counsel, 

made a monetary contribution to the preparation or submission 

of this brief. 
2 

INTRODUCTION AND 

SUMMARY OF ARGUMENT 

 “[A]bove all else, the First Amendment means that 

government has no power to restrict expression because of its message, its ideas, its subject matter, or its 

content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 

(1972). And “the First Amendment has its fullest and 

most urgent application precisely to the conduct of 

campaigns for political office.” McCutcheon v. FEC, 572 

U.S. 185, 191–92 (2014) (plurality opinion) (internal 

marks and citation omitted). In particular, the First 

Amendment prohibits laws that control “the relative 

ability of individuals and groups to influence the outcome of elections.” Citizens United v. FEC, 558 U.S. 310, 

350 (2010). 

 Given those premises, one might expect courts to 

require the government to carry a heavy burden to 

justify campaign-finance restrictions—especially those 

that would restrict political speech based on its content. Yet, too often, lower courts barely require the government to justify campaign-finance restrictions at all, 

regardless of their tendency to benefit some political 

candidates and groups over others. 

 This case illustrates the point. The lower court upheld a content-based restriction on political contributions: a rule allowing a political party to spend only 10 

percent of an individual’s maximum annual contribution on unrestricted speech, while requiring 30 percent 

to be spent on presidential nominating conventions, 

another 30 percent to be spent on election contests and 
3 

other legal proceedings, and another 30 percent to 

be spent on party headquarters buildings. 52 U.S.C. 

§§ 30116(a)(1)(B), (a)(9) and 30125(a)(1).2

 The district 

court found that this restriction benefits major parties 

over minor ones such as Petitioner, App. 51a—but the 

lower court did not require the government to justify 

the rule, let alone provide evidence in support of a justification. 

 The Court should hear this case to make clear 

that—to protect individuals’ freedom of speech and association, and to prevent undue government interference in the political process—the First Amendment 

demands more. 

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

ARGUMENT 

I. The Court should grant certiorari to ensure that all campaign-finance restrictions 

receive rigorous scrutiny. 

 “The First Amendment creates a forum in which 

all may seek, without hindrance or aid from the State, 

to move public opinion and achieve their political 

goals.” Knox v. SEIU Local 1000, 567 U.S. 298, 322 

(2012). It reflects a “profound national commitment to 

the principle that debate on public issues should be 

2 This brief addresses the second question presented by the 

petition for certiorari, regarding the constitutionality of the statutory provisions described here. The Court should also grant certiorari on the first question presented for the reasons stated in 

the petition. 
4 

uninhibited, robust, and wide-open.” Mosley, 408 U.S. 

at 95–96 (internal marks and citation omitted). That is 

why the Court subjects content-based restrictions on 

speech—whether based on the viewpoint expressed or 

the subject matter discussed—to strict scrutiny. See 

Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226–29 

(2015). 

 Protection against government interference with 

open debate is especially important in the context of 

campaigns for political office, where officials might use 

the law to suppress competition and preserve the status quo—including their own power. See id. at 2233 

(Alito, J., concurring) (“Limiting speech based on its 

‘topic’ or ‘subject’ favors those who do not want to disturb the status quo. Such regulations may interfere 

with democratic self-government and the search for 

truth.”). “[I]ntrusion by the government into the debate 

over who should govern goes to the heart of First 

Amendment values.” Bennett, 564 U.S. at 750. Under 

the First Amendment and our republican system of 

government, it is the people, not elected officials, who 

should “mak[e] and implement[ ] judgments about 

which strengths should be permitted to contribute to 

the outcome of an election.” Davis v. FEC, 554 U.S. 724, 

742 (2008). “[T]hose who govern should be the last people to help decide who should govern.” McCutcheon, 

572 U.S. at 192. 

 Campaign-finance restrictions are one means by 

which officeholders might use the law to try to suppress some ideas and boost others. Because of that 

threat, this Court has required the government to 
5 

justify any campaign-finance restriction by showing 

that it is either narrowly tailored or closely drawn3

 to 

prevent quid pro quo corruption. Id. “Campaign finance restrictions that pursue other objectives . . . impermissibly inject the Government into the debate 

over who should govern.” Id. (quotation marks and citation omitted). 

 The Court has required such rigorous scrutiny 

even where contribution limits are not content-based 

on their face. But the restrictions at issue here are 

content-based, and for that reason, are subject to the 

even stronger protection of strict scrutiny. See Reed, 

135 S. Ct. at 2226–29. 

 Although the potential for lawmakers to abuse 

campaign-finance laws might seem obvious, courts—

including the lower court here—often act as though 

they are blind to it. Despite this Court’s precedents 

calling for “rigorous” scrutiny, under which the government bears the burden to justify any infringement of 

First Amendment rights, McCutcheon, 572 U.S. at 197, 

lower courts too often do not require the government 

to justify restrictions on campaign contributions at all. 

 In this case, the lower court did not require the 

government to show that the restriction Petitioner 

3 Amicus agrees with Petitioner that the rule challenged 

here is a content-based restriction on speech and therefore subject 

to strict scrutiny under Reed, 135 S. Ct. at 2226–29, not the 

“closely drawn” scrutiny that the Court prescribed for challenges 

to contribution limits in Buckley v. Valeo, 424 U.S. 1, 25 (1976). 

See Pet. 33–34. Amicus’s arguments about the need for rigorous 

scrutiny, however, apply under either standard. 
6 

challenges is narrowly tailored or closely drawn to prevent quid pro quo corruption. Instead, it analyzed the 

statute Petitioner challenges as though there was 

nothing for the government to justify. The court observed that, “[b]efore 2014, [a political party] could accept only a base-limit sized contribution from any one 

person”; with a 2014 amendment to the statute, a party 

could “accept ten times that amount,” provided that it 

restricted its use of amounts exceeding the base limit 

to the purposes specified in the statute. App. 35a. 

Therefore, the court characterized Petitioner’s claim as 

one impermissibly challenging “Congress’s decision to 

raise contribution limits.” App. 35a–36a. As a result, 

the court concluded that Petitioner could not prevail 

unless the statute were shown to be so underinclusive 

as to “raise doubts about whether the government is in 

fact pursuing the [anticorruption] interest it invokes.” 

App. 44a (quoting Williams-Yulee v. Fla. Bar, 135 S. Ct. 

1656, 1668 (2015)). Without requiring the government 

to meet its burden, the court readily concluded that 

there was “no reason for such skepticism,” and upheld 

the law. App. 36a–41a. 

 That approach was exactly backward. The First 

Amendment default against which any campaignfinance restriction must be judged is unlimited political speech—including unlimited political expenditures 

and unlimited contributions to candidates and other 

political committees. See McCutcheon, 572 U.S. at 192 

(discussing need for First Amendment scrutiny of 

“[a]ny regulation” of campaign contributions or expenditures). To the extent that the government limits 
7 

contributions or expenditures at all, it must justify its 

restrictions—in their entirety—by showing that they 

are (at a minimum) “closely drawn” to prevent quid pro 

quo corruption. See id. at 197. 

 That remains true where, as here, a plaintiff challenges restrictions on contributions that exceed a base 

limit that, standing alone, might survive, or has in 

the past survived, First Amendment scrutiny. This 

content-based restriction on contributions above the 

base limit creates the risk, just as any campaignfinance restriction does, that the government is using 

the law to favor some voices in politics over others—

i.e., that it is committing one of the primary evils the 

First Amendment exists to prevent. That is exactly 

what is happening here: this restriction tends to benefit the major parties, which can use the restricted 

funds to advance their political agenda, and to hinder 

the minor parties, which would better pursue their political goals by using the money for other purposes. See 

Pet. 11–13; App. 50a–51a. 

 A court applying meaningful First Amendment 

scrutiny—placing the burden on the government, 

where it belongs, McCutcheon, 572 U.S. at 209—would 

at least demand that the government provide (and substantiate) a compelling explanation as to why contributions restricted for certain uses have so much less 

potential to corrupt than unrestricted contributions as 

to warrant the restriction. A court seeking to “ ‘avoid 

unnecessary abridgment’ of First Amendment rights,” 

McCutcheon, 572 U.S. at 199 (citation omitted), would 

demand that the government explain why it could not 
8 

serve its anticorruption purpose equally well without 

placing restrictions on the use of contributions exceeding the $33,400 base limit. But here, the lower court 

required virtually nothing of the government. 

 The lower court was not troubled by the statute’s 

tendency to benefit major parties over minor ones because, it said, the First Amendment does not allow the 

government to seek to “equalize the financial resources 

of candidates.” App. 39a (internal marks and citations 

omitted). That is true—the government may not restrict contributions for the purpose of equalizing resources or otherwise leveling the political playing field, 

see Bennett, 564 U.S. at 749–50—but it also may not 

enact restrictions that tilt the playing field to favor one 

side over another, at least not without meeting its burden to show that the restriction is closely drawn to prevent corruption. Cf. McCutcheon, 572 U.S. at 192, 199. 

And here, again, Petitioner challenges the restriction, 

not the lack of one. Petitioner challenges the statute’s 

restrictions on contributions to political parties exceeding $33,400. See App. 7a. 

 In short, the lower court gave virtually no scrutiny to the type of restrictions that warrant the most 

rigorous scrutiny to prevent the government from 

violating a fundamental premise and purpose of the 

First Amendment. To conclude, as the lower court did, 

that a past decision upholding a base limit automatically validates future content-based restrictions on 

contributions that exceed the base limit creates a perverse incentive antithetical to the goals of the First 

Amendment: it encourages legislators to impose new 
9 

restrictions designed to skew political debates and 

elections in ways that will serve their interests, knowing that these new restrictions will be virtually immune from challenge. 

 Unfortunately, this is not the only case in which a 

lower court has failed to appreciate the threat posed by 

contribution restrictions that favor some political players over others. Courts have also failed to provide 

sufficient scrutiny where governments have discriminated even more overtly by imposing higher contribution limits on some donors than on others. 

 For example, the Massachusetts Supreme Judicial 

Court applied virtually no scrutiny to a statute banning for-profit businesses—but not unions and nonprofits—from making political contributions in 1A 

Auto, Inc. v. Director of the Office of Campaign and Political Finance, 105 N.E.3d 1175 (Mass. 2018), cert. denied, 139 S. Ct. 2613 (2019). That court concluded that 

it was enough that the restriction on business contributions, considered alone, would tend to prevent 

corruption stemming from such contributions. Id. at 

1182–90. The court did not require the government to 

justify its lack of restrictions on union and non-profit 

contributions, but instead—like the lower court here—

performed an “underinclusiveness” analysis under 

which the government was not required to prove anything, and the plaintiffs, to prevail, would have had to 

provide evidence that the restriction on business was 

enacted for the purpose of benefiting those who were 

left unrestricted. Id. at 1188–89. 
10 

 In another recent case, the Seventh Circuit applied minimal scrutiny to an Illinois campaign finance 

statute that, among other things, allowed corporations 

and other associations to make double the political 

contributions that individuals may make—for example, by allowing individuals to give $5,000 to a candidate while allowing a corporation to give $10,000. Ill. 

Liberty PAC v. Madigan, 904 F.3d 463, 469–71 (7th Cir. 

2018), cert. denied sub nom. Ill. Liberty PAC v. Raoul, 

139 S. Ct. 1544 (2019). The court said the proper focus 

of analysis was only on whether the limit on individuals, considered alone, was unconstitutionally low. Id. at 

470. It concluded that the scheme’s more favorable 

treatment of corporations was irrelevant—and the 

statute could not be deemed fatally underinclusive—in 

the absence of evidence “that Illinois was not actually 

concerned about corruption when it promulgated the 

individual contribution limits.” Id. at 470. 

 Similarly, the District of Columbia Circuit has 

held that if a ban on contributions by a given class of 

donors, considered by itself, survives First Amendment 

scrutiny, then the government’s failure to similarly 

limit other donors cannot violate the Equal Protection 

Clause. Wagner v. FEC, 793 F.3d 1, 32–33 (D.C. Cir. 

2015), cert. denied sub nom. Miller v. FEC, 136 S. Ct. 

895 (2016). And the Eighth Circuit summarily rejected an Equal Protection Clause4

 challenge to a 

4 Although these cases framed the issue under the Equal 

Protection Clause, the Court has treated the First Amendment’s 

requirement of equal treatment of speakers as similar if not identical. See, e.g., Renton v. Playtime Theaters, Inc., 475 U.S. 41, 55 
11 

discriminatory contribution ban after concluding that 

the ban on corporate contributions, considered by itself, did not violate the First Amendment. Iowa Right 

to Life Comm., Inc. v. Tooker, 717 F.3d 576, 601–03 & 

n.11 (8th Cir. 2013). 

 By not requiring the government to fully justify its 

decisions about who and what to restrict (and not restrict) by reference to its interest in preventing corruption, the courts in these cases have disregarded the 

fundamental First Amendment principles requiring 

equal treatment of political speakers. These decisions 

disregard the need for content-, identity-, and motiveneutrality, and they ignore one of the most important 

reasons why contribution limits must be closely drawn 

to serve the government’s interest in preventing quid 

pro quo corruption and no other purpose: to ensure 

that the government does not “impermissibly inject [itself ] ‘into the debate over who should govern.’ ” 

McCutcheon, 572 U.S. at 192 (quoting Bennett, 564 U.S. 

at 750). 

 If lower courts continue to ignore this Court’s requirement for rigorous scrutiny of campaign-finance 

restrictions, legislators will know that they may manipulate contribution limits—restricting the purpose 

for which contributions may be used, or overtly discriminating in favor of some donors and against others—to play favorites and improperly influence the 

n.4 (1986) (summarily rejecting equal protection claim after analyzing and rejecting First Amendment claim because plaintiffs 

could “fare no better under the Equal Protection Clause than under the First Amendment itself ”). 
12 

outcome of elections. One might hope that public servants could be trusted to resist the urge to engage in 

such meddling, “but experience has taught mankind 

the necessity of auxiliary precautions.” The Federalist 

No. 51 (J. Madison) at 349 (J. Cooke ed. 1961). The First 

Amendment is one of those precautions; it exists precisely because elected officials cannot be trusted to 

oversee the process of electing officials. See Citizens 

United, 558 U.S. at 340 (the First Amendment is “[p]remised on mistrust of governmental power”); Richard A. 

Epstein, Property, Speech, and the Politics of Distrust, 

59 U. Chi. L. Rev. 41, 54 (1992) (explaining that the 

First Amendment exists to “control” legislators who 

would “stifle criticism, rig debate, and disseminate 

falsehoods to achieve their ends”). 

 To prevent this, the Court should clarify courts’ obligation to rigorously scrutinize all types of campaignfinance restrictions by requiring the government to 

fully justify any decisions that limit a donor’s ability to 

give money to a political candidate or committee, or 

that limit a candidate or political committee’s ability 

to use contributions for political speech. 

II. The Court should grant certiorari to ensure that courts require the government to 

justify any campaign-finance restriction 

with evidence. 

 The lower court’s decision also reflects another 

common problem with courts’ analyses of First Amendment challenges to campaign-finance restrictions: 
13 

failure to require the government to justify its restrictions on First Amendment rights with evidence 

that the restriction is actually drawn to prevent corruption. 

 This Court has made clear that the government 

must support any purported justification for a restriction on First Amendment rights—including any 

restriction on campaign contributions—with evidence. 

See Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391–

92 (2000) (considering contribution limits); Edenfield v. 

Fane, 507 U.S. 761, 770–71 (1993) (considering commercial speech restriction). “[M]ere conjecture” will not 

suffice. Nixon, 528 U.S. at 392. 

 Yet lower courts—including the lower court here—

have upheld restrictions on campaign contributions 

based on little more than conjecture. To justify the 

government’s restrictions on contributions to political 

parties exceeding $33,400, the court in this case speculated that Congress “could have permissibly concluded that unlike contributions that can be used for, 

say, television ads, billboards, or yard signs, contributions that fund mortgage payments, utility bills, and 

lawyers’ fees have a comparatively minimal impact on 

a party’s ability to persuade voters and win elections.” 

App. 37a (emphasis added). For its “evidence,” the 

court cited two statements from congressional leaders stating that “ ‘many’ of the ‘expenditures made 

from the [dedicated-purpose] accounts’ are ‘not for the 

purpose of influencing federal elections.’ ” Id. (quoting 

160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014) 
14 

(statement of Sen. Reid); id. at H9286 (daily ed. Dec. 

11, 2014) (statement of Rep. Boehner)). 

 What does “many” mean? And, given that money 

is fungible—and money given to major parties’ 

dedicated-purpose accounts would therefore tend to 

free up unrestricted funds for influencing elections 

(see Pet. 11; App. 50a–51a)—why wouldn’t contributions to dedicated-purpose accounts still give rise to 

the same corruption concerns as unrestricted contributions? And why should a court credit assertions by politicians—who are also leaders of the major parties that 

stand to benefit from the restriction at issue—urging 

support for their own legislation? Or where such assertions might very well have been made “not primarily 

to inform the Members of Congress what the bill 

meant . . . but rather to influence judicial construction[?]” Blanchard v. Bergeron, 489 U.S. 87, 98–99 

(1989) (Scalia, J., concurring in judgment). These are 

questions a court would ask if it were to meaningfully 

scrutinize a restriction on speech under the First 

Amendment. The lower court, however, save for a partial dissent (App. 44a–48a (opinion of Griffith, J.)), 

showed no concern for them. 

 The lower court’s decision is not the first to rely on 

statements from politicians who passed or supported a 

campaign-finance restriction as evidence that the law 

serves a legitimate anticorruption purpose. See, e.g., 

Lair v. Motl, 873 F.3d 1170, 1179–80 (9th Cir. 2017), 

cert. denied sub nom. Lair v. Mangan, 139 S. Ct. 916 

(2019) (upholding contribution limit based in part 

on testimony from legislator); State v. Alaska Civil 
15 

Liberties Union, 978 P.2d 597, 615–16, 620–21 (Alaska 

1999) (upholding limits on contributions by out-ofstate donors based partly on affidavits from former 

governors that “contributions from outside the state 

create serious loyalty problems” with no evidence of 

“special corruption caused by out-of-state contributions” and upholding general contribution limits based 

on affidavits from officeholders regarding their purported uncertainty about their motivations for voting 

for or against donors’ interests). Of course this evidence is hardly reliable—it is the stuff of rational-basis 

review, at best, and reliance on it amounts to allowing 

government officials to authorize their own violations 

of First Amendment rights. 

 Along similar lines, some courts have considered 

voters’ approval of a ballot measure imposing contribution limits as evidence that contributions create the 

appearance of corruption in voters’ minds, which justifies the limits. See, e.g., Zimmerman v. City of Austin, 

881 F.3d 378, 386 (5th Cir. 2016), cert. denied, 139 S. Ct. 

639 (2018) (citing “the fact that 72% of voters voted in 

favor of the base limit” as evidence that contributions 

exceeding the limit create the appearance of corruption); Ognibene v. Parkes, 671 F.3d 174, 190 (2d Cir. 

2011) (“The fact that City voters passed . . . these reforms speaks powerfully to the public perception 

that further regulation of campaign contributions . . . 

is needed.”). That not only is circular—allowing 

campaign-finance measures to justify themselves 

through their own existence—it also contradicts “the 

whole point of the First Amendment,” which “is to 
16 

protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” Bennett, 564 U.S. at 754; 

see also McCutcheon, 572 U.S. at 191 (Though “[m]any 

people . . . would be delighted to see fewer [campaign] 

television commercials . . . [and m]oney in politics may 

at times seem repugnant to some, . . . the First Amendment . . . surely protects political campaign speech despite popular opposition.”). 

 Sometimes, courts upholding campaign finance restrictions even cite newspaper articles alleging or implying that campaign contributions are a source of 

corruption as if these were evidence. See, e.g., Minn. 

Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 

1106, 1114–15 (8th Cir. 2005) (upholding aggregate 

contribution limit based on “newspaper articles detailing special interest contributions and perceived 

corruption”); Daggett v. Comm’n on Govt’l Ethics & 

Election Practices, 205 F.3d 445, 457 (1st Cir. 2000) (citing “news stories and editorial comment”); Nathan Persily & Kelli Lammie, Perceptions of Corruption and 

Campaign Finance: When Public Opinion Determines 

Constitutional Law, 153 U. Pa. L. Rev. 119, 129 (2004) 

(describing newspaper evidence Daggett relied on as 

“both typical and typically vacuous”). In such cases, 

“[e]ditorials and opinion pieces swim alongside news 

reports of shady deals and influence peddling, with 

each journalist’s account or editorial board’s outrage 

used to build a case of apparent corruption.” Id. at 130. 

 Courts’ reliance on these sources as sufficient “evidence” of corruption “means that the most zealous and 
17 

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 the regulation.” Ronald M. Levin, 

Fighting the Appearance of Corruption, 6 Wash. U. J.L. 

& Pol’y 171, 178 (2001). True, the lower courts accepting this evidence purport to follow Nixon, which cited 

newspaper reports as evidence of corruption justifying 

Missouri’s scheme of campaign contributions. 528 U.S. 

at 393. But Nixon concluded that Missouri’s limits bore 

a “striking resemblance” to federal limits the Court 

had already upheld in Buckley, and it acknowledged 

that more novel or less plausible justifications would 

require more evidence. Id. at 391, 395. 

 In any event, whatever the merits of the evidence 

used in Nixon, courts’ acceptance of mere allegations 

in news stories as sufficient evidence to justify campaign contributions is inconsistent with the rigorous 

scrutiny the Court has called for in more recent 

campaign-finance decisions. If people’s reported belief 

that contributions give rise to corruption can justify 

contribution limits without regard to whether those 

beliefs are well-founded, then “the requirement of 

proof of need for restrictions might as well be rescinded 

entirely,” because “[t]he public always believes this,” 

and virtually nothing would be off-limits. Levin, supra, 

at 177 (emphasis added). 

 In other cases, courts have relied on evidence 

of activities having nothing to do with corrupt campaign contributions. See Lair, 873 F.3d at 1189–90 

(Bea, J., dissenting) (noting that supposed instances of 
18 

corruption cited to justify restriction did not “involve[ ] 

bribery or the improper trading of official acts . . . for 

monetary contributions”); 1A Auto, 105 N.E.3d at 1186 

(upholding ban on business contributions, citing instances of bribery not involving campaign contributions); Casino Ass’n of La. v. State, 820 So.2d 494, 

504–08 (La. 2002) (upholding ban on contributions by 

casino industry, citing general association of gambling 

with vice and corruption). 

 Finally, in some cases, courts have upheld limits 

based on nothing but conjecture, analogy to previous 

cases upholding different limits, or an apparent presumption that the government acted with a proper 

purpose. See Ill. Liberty PAC, 904 F.3d at 469–71 (upholding limits allowing corporations and other associations to give double the contributions individuals 

could give after the district court “dismissed this claim 

on the pleadings without putting the defendants to 

[any] evidentiary burden”); Holmes v. FEC, 875 F.3d 

1153, 1164 (D.C. Cir. 2017), cert. denied, 138 S. Ct. 2018 

(2018) (upholding separate $2,600 limits for primary 

and general elections, noting that “Congress could conceivably regard a one-time contribution of $5,200 in 

the general (or primary) election alone to present a 

greater risk of . . . corruption than two distinct contributions of $2,600 in each of the primary and general 

elections”) (emphasis added); Frank v. City of Akron, 

290 F.3d 813 (6th Cir. 2002) (upholding municipal contribution limits without citing evidence); Ky. Right 

to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997) (upholding state contribution limits without citing evidence). Yet it is supposed to be one of the definitive 
19 

characteristics of First Amendment scrutiny that no 

presumption of constitutionality applies, and that the 

government bears the burden of justifying restrictions 

on such rights. United States v. Alvarez, 567 U.S. 709, 

715–17 (2012). 

 None of the approaches currently being employed 

by lower courts—in contravention to this Court’s repeated instructions—is sufficient to avoid abridgements of First Amendment rights and to prevent 

undue government interference with the political process. The Court should take this opportunity to clarify 

the government’s burden to justify its decisions and 

the courts’ responsibility to safeguard fundamental 

constitutional rights. 

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

CONCLUSION 

 The petition for certiorari should be granted. 

Respectfully submitted, 

TIMOTHY SANDEFUR

JACOB HUEBERT* 

SCHARF-NORTON CENTER FOR 

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd. 

Phoenix, AZ 85004 

(602) 462-5000 

litigation@goldwaterinstitute.org 

*Counsel of Record

Counsel for Amicus Curiae Goldwater Institute