UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

PLAINTIFFS’ SECOND MOTION IN LIMINE 

_______________________________________________________

For the reasons set forth in more detail in the attached memorandum of points and 

authorities, Plaintiffs respectfully ask that the Court exclude from evidence the report of 

Expert Witness Clyde Wilcox (FEC Ex. 1). Because the above-cited evidence is 

inadmissible, Plaintiffs further move that the Court reject the proposed findings that rely 

on that evidence and are contained in the following paragraphs of Defendant’s Proposed 

Findings of Fact: ¶¶ 79, 80, 81, 82, 83, 84, 85, 87, 88, 90, 91, 92, 93, 94, 95, 97, 100, 106, 

116, 117, 118, 119, 121, 122, 123, 124, 126, 127, 128, 129, 132, 133, 134, 135, 137, 138, 

139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 156, 157, 

158, 159, 163, 164, 165, 166, 176, 177, 181, 186, 190, 191, 192, 193, 194, 195, 196, 203, 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 1 of 25
2

208, 209, 210, 211, 212, 213, 214, 215, 217, 218, 219, 220, 222, 223, 226, 227, 228, 230, 

237, 238, 240, 245, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 

263, 264, 265, 269, 270, 271, 274, 275, 276, 309, 314, 315, 328, 339, 340, 341, 350, 351, 

352, 358, 359, 361, 362, 363, 364, 365, 366, and 367. 

Pursuant to Local Rule 7(m), counsel for Plaintiffs has conferred with counsel for 

the FEC concerning this motion. The FEC opposes this motion. 

Plaintiffs further ask that the Clyde Wilcox Deposition Transcript, (FEC Ex. 18), 

be excluded from evidence and that the following Proposed Findings of Fact, based upon 

that transcript, be rejected: ¶¶ 131, 136, 185, 242, 244, 336, and 337. 

Dated: November 21, 2008. 

Respectfully submitted, 

/s/ Steven M. Simpson

Robert Gall (DC Bar No. 482476) 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 2 of 25
3

Attorneys for Plaintiffs

 *Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 3 of 25
4

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on this 21st Day of November, 2008, a true and correct 

copy of PLAINTIFFS’ SECOND MOTION IN LIMINE was electronically filed using 

the court’s ECF system and sent via the ECF electronic notification system to the 

following counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 4 of 25
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

MEMORANDUM OF POINTS AND AUTHORITIES 

IN SUPPORT OF PLAINTIFFS’ SECOND MOTION IN LIMINE 

_______________________________________________________

For the reasons stated below, Plaintiffs by and through their attorneys respectfully 

request that the Court grant their motion to exclude from evidence the report and 

testimony of Defendant’s expert witness Clyde Wilcox, and further that the Court 

disregard all of the FEC’s proposed findings of fact based on Professor Wilcox’s report 

or deposition testimony. 

INTRODUCTION 

As explained in Plaintiffs’ first motion in limine, the FEC has demonstrated an 

almost total disregard for the requirements of the Federal Rules of Civil Procedure and 

the Federal Rules of Evidence. This disregard is especially manifest in its attempt to 

introduce as evidence the expert report of Professor Clyde Wilcox. Because that report is 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 5 of 25
2

unsworn and does not meet the reliability requirements of Fed. R. Evid. 702 and Daubert 

v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), Plaintiffs ask that the Court 

exclude it from the evidence in this matter. In their brief in response to the FEC’s 

proposed findings of fact, Plaintiffs have noted several problems regarding the serious 

flaws in the report, and have addressed them both in their general objections and their 

paragraph-by-paragraph response to each proposed finding. Rather than repeat all of 

those observations (which are incorporated here by reference), Plaintiffs offer highlights 

of the problems that, standing alone, are sufficient to undermine the report’s 

admissibility. 

I. The Report by Clyde Wilcox Is Unsworn Hearsay Testimony and May Not 

Be Considered by the Court 

The FEC does not offer any admissible evidence to support the allegations of its 

expert witness, Professor Clyde Wilcox. Instead, the FEC only offers, and repeatedly 

cites to, the unsworn report of the professor. But unsworn statements—even in the form 

of expert reports—are not competent evidence and cannot be considered by the Court. 

Nnadili v. Chevron U.S.A. Inc., 435 F. Supp. 2d 93, 105 (D.D.C. 2006) (“unsworn expert 

report is not competent to be considered on a motion for summary judgment.”) (citing 

Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir. 1989)); see also Carr v. Tatangelo, 338 

F.3d 1259, 1273 n. 26 (11th Cir. 2003) (“Importantly, the alleged expert's report is 

unsworn. ... Unsworn statements ‘do[ ] not meet the requirements of Fed. Rule Civ. 

Proc. 56(e)’ and cannot be considered by a district court in ruling on a summary 

judgment motion.”) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17 

(1970)); Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001). 

Accordingly, Plaintiffs ask that the Court exclude the Wilcox report in its entirety. 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 6 of 25
3

Furthermore, a number of paragraphs in the FEC’s Proposed Findings of Fact rely on 

Professor Wilcox’s report for evidentiary support. Because a fact without any support is 

simply an assertion, the Plaintiffs ask that those proposed findings of facts that rely on the 

unsworn report also not be considered by the Court. 

II. The Wilcox Report Should Be Excluded, As It Does Not Meet the Reliability 

Requirements of Federal Rule of Evidence 702 and Daubert

But the fact that Professor Wilcox failed to provide a sworn declaration is not the 

only problem with considering his testimony. The more pressing concern is that, simply 

put, the Wilcox report is the report of an expert, but is not an expert report. Instead of 

employing the usual degree of rigor and critical inquiry that is required of an academic 

researcher and scholar, Professor Wilcox makes sweeping assertions (even some that 

actually contradict his prior research), relies wholesale on materials supplied to him by 

others rather than undertaking independent research, and does not support his conclusions 

with hard facts and information. At its core, his testimony (no matter what form it is 

presented in) is unreliable and, under its Daubert gatekeeping powers, the Court should 

strike it in full. 

Under Daubert v. Merrell Dow Pharmacies, trial courts must act as gatekeepers in 

deciding whether proferred evidence is “(1) scientific[, technical, or other specialized] 

knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” 

509 U.S. at 592. In so doing, judges must “ensur[e] that the expert’s testimony both rests 

on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 598. 

Reliability, in particular, is vital, as the purpose of Rule 702 is to ensure “that an expert 

. . . employs in the courtroom the same level of intellectual rigor that characterizes the 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 7 of 25
4

practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 

152 (1999). 

The Daubert court established a flexible inquiry for the trial judge in determining 

the scientific validity of an expert’s testimony. 509 U.S. at 592, 594-95. The Court 

enumerated several factors the trial judge might consider in making this determination: 

whether the theory or technique can be or has been tested, whether it has been subjected 

to peer review and publication, the known or potential rate of error of the technique and 

whether there are standards controlling the operation of the technique, and the acceptance 

of the technique within the scientific community. Daubert, 509 U.S. at 593-94. But 

“these factors are neither exclusive nor dispositive, and their application depends on the 

particular facts of each case.” Groobert v. President & Dirs. of Georgetown College, 219 

F. Supp. 2d 1, 6 (D.D.C. 2002). Under any set of criteria, though, the Court’s 

determination of whether testimony is reliable must be based on the “principles and 

methodology” that the proposed expert used in formulating his opinions. Ambrosini v. 

Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). Where an expert does not employ the 

same type of probing analysis that he or she would use in investigating a matter outside 

the litigation, the resulting opinions should be disregarded. Freeland v. Iridium World 

Communs., Ltd., 545 F. Supp. 2d 59, 87 (D.D.C. 2008) (“Expert testimony may not be 

permitted where it is based upon speculation.”). 

Here, the FEC has the burden of demonstrating by a preponderance of the 

evidence both that Professor Wilcox’s testimony is admissible and that he is qualified to 

testify. Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001). But it 

cannot do so because Professor Wilcox did not prepare his report with sufficient rigor. 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 8 of 25
5

All experts, including social scientists, must apply the same intellectual rigor in their 

work for the litigation that would be required of them in other professional settings. 

Groobert, 219 F. Supp. 2d at 6 (citing Kumho Tire Co., 526 U.S. at 152). 

Simply put, Professor Wilcox’s work on this matter was not the kind of rigorous, 

thorough analysis that one would expect of a veteran scholar and researcher. At his 

deposition, Professor Wilcox conceded that time pressures severely limited the attention 

he could give the report. At the same time he was preparing his expert report, he was 

halfway around the world teaching a course in “Interest Groups in American Elections” 

at the University of Tokyo. In addition, Professor Wilcox was under deadline, as he had 

to soon complete two different book chapters. As a result, “I had a lot of other things 

going on. So, you know, this was kind of a -- on academic standards, that's kind of a 

tight time frame.” FEC Ex. 18, Wilcox Dep. at 74:21-75:6. Under these pressures, 

Professor Wilcox put together what amounts to a position paper: he simply cobbled 

together materials in an (unsuccessful) attempt to support his conclusions, relied on the 

FEC to direct his research, and put together a report containing broad, unsupported 

assertions. 

A. Professor Wilcox’s Methods 

Professor Wilcox testified at his deposition about his approach to putting together 

his report: 

Q. Okay. What process or procedure did you undertake to answer those 

questions? 

A. You know, I thought about them for a while. I kind of reviewed in my 

mind various evidence that I had over the years. I reread some articles and 

I looked at the literature and I made a few interviews. You know, there 

really wasn't a lot of time, right. 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 9 of 25
6

FEC Ex. 18, Wilcox Dep. at 74:6-13; see also FEC Ex. 18, Wilcox Dep. at 108:8-10 

(“With a relatively short amount of time, the question is what can you read and what you 

cannot read.”). 

This approach was akin to putting together a position paper, not a scholarly 

report. Professor Wilcox simply reviewed materials that the FEC sent him and had his 

research assistant track down some additional newspaper and academic articles. FEC Ex. 

18, Wilcox Dep. at 11:3-22; 100:7-11. At his deposition, he stated that, “if this were like 

a big long project, you would make a list of people to interview.” FEC Ex. 18, Wilcox 

Dep. at 90:16-17. Instead, citing time pressures, he interviewed only one politician, 

former Senate Majority Tom Daschle, who he knew was in favor of campaign finance 

regulation. FEC Ex. 18, Wilcox Dep. at 92:4-11. This lone interview took place two 

days before the expert report was due. 

Professor Wilcox’s review of the relevant campaign-finance literature also 

deviated from what a serious researcher would have done in preparing to write an 

academic paper for publication. Professor Wilcox did not review the entire campaign 

finance literature, saying that would have taken too long under the time constraints he 

faced. FEC Ex. 18, Wilcox Dep. at 77:21-78:1 (“A. Reviewing the entire literature on 

campaign finance would be a six months job and you probably couldn't even keep up 

with it at that point, right?”). But what is more worrisome is that Professor Wilcox did 

not review even the most pertinent academic works. After the FEC sent Professor 

Wilcox the report of Plaintiffs’ expert Jeffrey Milyo, Professor Wilcox asked a research 

assistant to gather various articles Professor Milyo had cited. Declaration of Robert Gall 

in Support of Plaintiffs’ Second Motion in Limine [hereinafter Gall Decl.], Ex. A, Email 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 10 of 25
7

from Clyde Wilcox to Patrick Carr (Sept. 16, 2008, 09:57 PM). These articles, which 

include such works as Thomas Stratmann, “Contribution Limits and the Effectiveness of 

Campaign Spending,” Public Choice (2006), James Snyder, “Long-Term Investing in 

Politicians; or, Give Early, Give Often,” Journal of Law and Economics (1992), and 

Robyn Dawes, “Social Dilemmas,” Annual Review of Psychology (1980), are directly 

relevant to the topics at issue in this lawsuit. But during his deposition, Professor Wilcox 

admitted that he had not read any of those articles when he was putting together his own 

report, even though he knew of their existence. FEC Ex. 18, Wilcox Dep. at 140:1-6 (“Q. 

Okay. Just to be clear -- I apologize if I already asked this, but had you reviewed any of 

these articles in preparing your expert report? A. I did not review these specific articles 

before preparing my report, but I was aware of their existence.”). 

Professor Wilcox also did not consider academic works that cast into doubt the 

conclusions of the articles he cited. For instance, Professor Wilcox cited an article by 

Hall and Wayman to demonstrate that there was a link between candidate contributions 

and “access.” But by not following up on the subsequent literature, Professor Wilcox 

failed to recognize that other articles have criticized the methodology Hall and Wayman 

employed, going so far as to say the paper’s findings are “almost surely biased.” 

Rebuttal Declaration of Jeffrey Milyo at ¶ 26 (quoting Rebuttal Report of Professor 

James Snyder, Jr. from McConnell v. FEC). 

B. The FEC’s Direction of Professor Wilcox’s Work 

A scholar must maintain an independent mind when researching and drafting an 

academic article for publication. FEC Ex. 18, Wilcox Dep. at 64:21-65:2 (“Q. Do 

researchers typically obtain the evidence that they review from those who are paying for 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 11 of 25
8

their studies? A. Usually not in political science.”). But from the very beginning, 

Professor Wilcox’s approach was guided and shaped by the attorneys at the FEC. Given 

that SpeechNow.org is putting forward an as-applied challenge to various campaignfinance laws, one would think that the specific facts surrounding SpeechNow.org might 

be of some importance to Professor Wilcox’s research. But the FEC expressly told 

Professor Wilcox not to look at SpeechNow.org, an instruction he pliantly followed. 

FEC Ex. 18, Wilcox Dep. at 79:1-5 (“Q. Did you review any documents pertaining to 

SpeechNow.org itself? A. You know, I think I had the filing but, you know, they said, 

‘We're not really interested in the details of the case’ and so I didn't read it.”). 

Like the topics upon which Professor Wilcox was to inquire, much of the 

evidence Professor Wilcox cites to in his report were not the products of his own 

independent research. Instead, the FEC sent e-mail after e-mail to Professor Wilcox, 

each filled with documents for use in his report. They sent to him newspaper articles, 

Gall Decl. Ex. B, Email from Graham Wilson to Clyde Wilcox (July 11, 2008, 05:09 

PM); results from opinion surveys, Gall Decl. Ex. C, Email from Robert Bonham to 

Clyde Wilcox (July 11, 2008, 03:06 PM); a motion for recusal and supporting documents, 

Gall Decl. Ex. D, Email from Steve Hajjar to Clyde Wilcox (July 24, 2008, 12:32 PM); 

and a hyperlink to the California Fair Political Practice Commission report on 

Independent Expenditures, Gall Decl. Ex. E, Email from Steve Hajjar to Clyde Wilcox 

(June 27, 2008, 05:50 PM). In all, FEC attorneys sent Professor Wilcox at least 

seventeen different sources that he eventually cited as support in his report. 

C. The End-Result: A Deficient Results-Driven Report Based on 

Unsupported Assertions 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 12 of 25
9

Professor Wilcox produced a report that is vastly below the standards for research 

and scholarship that his profession demands. In many instances, he cites to or quotes 

from academic articles without disclosing to the Court that other portions of those same 

articles directly undercut his arguments. Other times, he makes assertions that are 

directly contradicted by his prior research. And finally, he offers conclusions without 

any evidentiary support. The end product of these methods is not a piece of reasoned 

scholarship, but a position piece that gathers whatever evidence it can to support its preordained conclusion. 

1. Professor Wilcox’s Discussion of Academic Articles Omits 

Significant Portions of Those Articles That Undercut His 

Conclusions 

As documented in the rebuttal declaration of Professor Jeffrey Milyo, Professor 

Wilcox completely ignores scholarly evidence when it is inconvenient to his position. 

Even in articles that he does cite, he provides the Court with only a partial and 

incomplete view of what those articles say. In quoting and focusing on only certain 

portions of academic articles upon which he relies, Professor Wilcox ignores other 

portions that undercut his claims about the efficacy of independent expenditures and their 

potential for corruption. The result is the false appearance that there is stronger academic 

support for Professor Wilcox’s position than is actually the case. Below, Plaintiffs point 

out just a few examples of Professor Wilcox’s omissions. 

a. Michael J. Malbin, Rethinking the Campaign Finance Agenda, 6 

THE FORUM, Issue 1, Article 3 (2008) (Gall Decl. Ex. F) 

On page five of his report, Professor Wilcox makes the following statement about 

“rent seeking” by politicians: 

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10

When large contributions are permitted, policymakers have pressured 

potential donors to give large sums before their issues are addressed by 

government. Political scientist Michael Malbin notes that these efforts 

might be thought of as harassment or “rent seeking” by politicians, but 

“whatever the language, the record is replete with fully documented 

examples from 1972 onward. This is not about appearances. The problem 

is real, it cannot possibly be rooted out with disclosure, and it is stimulated 

by unlimited contributions.” 

FEC Ex. 1, Wilcox Report at 5 (quoting Malbin, supra). 

Based on this quotation, a reader would assume that Professor Malbin had 

concluded that unlimited giving to independent expenditure groups create a risk that 

politicians would extort funds from individuals and groups. But what is missing from 

Professor Wilcox’s report is an acknowledgement that Professor Malbin was not talking 

about independent expenditures when he made this statement. Instead, he was discussing 

the potential risk caused by direct contributions to candidates. Indeed, early on in his 

article Professor Malbin makes a crucial distinction between the two: 

Even if we grant the questionable empirical claim that equates 

independent spending with contributions from the quasi-bribery 

perspective, the equivalency idea [between independent expenditures and 

contributions] fails to address the quasi-extortion side of the issue. From 

this perspective, the contribution is a unique form of transaction because 

office-holders ask directly for help [and it is] the office-holder’s ability to 

ask for help directly [that] creates the potential for shakedowns. 

Gall Decl. Ex. F, Malbin, supra, at 3-4. 

This quotation from Professor Malbin makes two separate points: 1) that he is 

skeptical of the idea that independent spending can be equated to contributions to 

candidates or political parties in terms of their potential to “bribe” politicians, and 2) that 

he feels no equivalency exists between independent expenditures and direct contributions 

to candidates or political parties when one speaks about politicians’ ability to extort rents. 

It thus directly undercuts Professor Wilcox, who says that “[l]arge contributions to 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 14 of 25
11

groups whose principal purpose is to make independent expenditures has the same 

potential for corruption as large direct contributions to candidates.” FEC Ex. 1, Wilcox 

Report at 5. Rather than confront such contradictory evidence, Professor Wilcox ignores 

it. As a result, those who have not read the entire Malbin article might conclude that 

Professor Malbin’s research solidly and completely supports Professor Wilcox’s position. 

b. Richard N. Engstrom & Christopher Kenny, The Effects of 

Independent Expenditures in Senate Elections, 55 POLITICAL 

RESEARCH QUARTERLY 885 (2002) (Gall Decl. Ex. G) 

Later on in his report, Professor Wilcox discusses the effectiveness of 

independent expenditures in influencing voters and the outcome of elections. In stating 

that “[s]cholars have generally concluded independent expenditures do help candidates,” 

Professor Wilcox cites to a single empirical work. 

Statistical studies have concluded that these campaigns influence votes. 

Political Scientists Richard Engstrom and Christopher Kenny explore the 

limited reported spending in actual independent expenditures by PACs, 

and conclude that “we find that independent expenditures can significantly 

affect vote choice... In general, our results seem to conform to the 

conventionally accepted account of the 20-year history of independent 

expenditures in U.S. elections.” 

FEC Ex. 1, Wilcox Report at 13 (quoting Engstrom & Kenny, supra). 

Plaintiffs question whether a single study is sufficient support for the idea that 

there is “general” agreement among scholars. But that is of no great matter. The far 

larger concern lies in the fact that Professor Wilcox fails to consider other portions of the 

study in which the authors note that 

[w]hile it is not infrequent for writers endorsing reforms in campaign 

finance laws to mention independent expenditures as one of many 

examples of the current system’s corruption, it is rare to find independent 

expenditures figuring prominently in more rigorous examinations of the 

role money plays in the political process. 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 15 of 25
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Gall Decl. Ex. G, Engstrom & Kenny, supra, at 889. 

This quote exposes as baseless Professor Wilcox’s claim, on page 6 of his report, 

that “[t]here is ample evidence that candidates appreciate independent expenditure 

campaigns, and would be likely to reward those who fund them” (emphasis added). With 

that assertion falsified, it becomes clear that Professor Wilcox’s argument that 

independent expenditures carry the same potential for corruption as contributions to 

candidates is rooted only in speculation. 

c. Gary C. Jacobson, The Effect of the AFL-CIO's “Voter Education” 

Campaigns on the 1996 House Elections, 61 THE JOURNAL OF 

POLITICS 185 (1999) (Gall Decl. Ex. H) 

Additional concerns arise when one looks at how Professor Wilcox quotes from 

other articles concerning the effectiveness of independent spending in specific races. On 

pages 13 and 14 of his report, Professor Wilcox writes as follows: 

Political scientist Gary Jacobson, one of the leading experts on 

Congressional elections, concludes from his careful statistical analysis of 

the impact of the AFL-CIO’s issue advocacy campaigns in 1996 that 

“labor can plausibly claim responsibility for defeating a majority of first 

term [Republican] losers. Thus, money spent outside the regular 

campaigns on ‘voter education’ can have a major effect on election 

results.” 

FEC Ex. 1, Wilcox Report at 13-14 (quoting Jacobson, supra). 

But other portions of Professor Jacobson’s article make it clear that independent 

spending is only a small determinant in who wins any particular race. For instance, in 

one section of his paper, Professor Jacobson notes from his previous research that 

we also have abundant evidence that money, by itself, does not defeat 

incumbents. Only in combination with potent issues and high-quality 

challengers do even the best-financed campaigns have a decent chance of 

succeeding. 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 16 of 25
13

Gall Decl. Ex. H, Jacobson, supra, at 186 (citing Gary C. Jacobson, THE POLITICS OF 

CONGRESSIONAL ELECTIONS (4th ed. 1997)). Later, in looking at the specific races in his 

study, Professor Jacobson likewise concludes that independent spending was effective 

only in certain situations. 

Labor’s ‘voter education’ drive achieved its goal only when the 

Democratic candidate conducted a vigorous local campaign, confirming 

the need for all three conditions—plenty of money, potent issues, and 

capable challengers—to defeat House incumbents. 

Gall Decl. Ex. H, Jacobson, supra, at 193. 

The quotes by Professor Jacobson therefore establish that electoral success is a 

tricky business, requiring a combination of factors. But Professor Wilcox’s selective 

quotations from the article do not reflect that nuance. 

2. Professor Wilcox Ignores His Own Prior Research When It 

Undermines His Report’s Conclusions 

In addition to ignoring inconvenient information within the articles written by 

others that he cites, Professor Wilcox also ignores his own prior research in 

circumstances where it would significantly qualify or diminish his conclusions. Three 

examples are discussed below. 

a. Clyde Wilcox et al., THE FINANCIERS OF CONGRESSIONAL 

ELECTIONS: INVESTORS, IDEOLOGUES AND INTIMATES 42 (2003) 

(Pls.’ Ex. 22) 

Both in his expert report and in the Defendant’s Proposed Findings of Fact, 

Professor Wilcox contends that while “[i]ndividuals make contributions to candidates for 

a variety and mixture of motives,” “[m]any are ‘investors’ who give in part or primarily 

to protect or promote their business interests.” FEC Ex. 1, Wilcox Report at 6; FEC’s 

Proposed Findings of Fact at ¶ 137. He then goes on to state that “[a] survey of 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 17 of 25
14

congressional donors of $1000 or less in 1996 showed that nearly three in four admit that 

they give for business reasons at least some of the time . . . .” FEC Ex. 1, Wilcox Report 

at 6; FEC’s Proposed Findings of Fact at ¶ 137. 

Reading Professor Wilcox’s report produces the impression that he believes that 

those seeking access are the largest group of contributors. But this is not the case. In his 

academic research on the topic, Professor Wilcox states that the vast majority of donors 

give for “ideological” reasons; that is, to effect changes in policy that have broad effects 

for the entire population: 

Large majorities of contributors indicated that influencing elections is 

always important to them. . . . More than 60 percent maintained that 

influencing an election outcome or public policies is very important, and 

roughly 30 percent stated these factors are somewhat important. . . .That 

purposive goals are a major factor in the decision to contribute is not 

surprising. 

Pls.’ Ex. 22, Wilcox et al., FINANCIERS OF CONGRESSIONAL ELECTIONS, supra, 45. 

And in spite of the strong weight that Professor Wilcox gives to donors he says 

are seeking “access” in his report and testimony, his academic work indicates that “[f]ew 

donors indicated that material or solidary goals were very important” when deciding 

whether to contribute and that “[d]onors most often cited policy-related factors or 

personal connections when asked about the factors that motivate them to make individual 

contributions.” Id. Professor Wilcox’s failure to provide this information is yet another 

indicator that his report was result-driven, not data-driven, and thus unreliable. 

b. Clyde Wilcox, et al., Interest Groups and Advocacy Organizations 

After BCRA, in THE ELECTION AFTER REFORM: MONEY, POLITICS,

AND THE BIPARTISAN CAMPAIGN REFORM ACT 112 (Michael 

Malbin ed., 2006) (FEC Ex. 55) 

Later on in his report, Professor Wilcox states the following: 

Case 1:08-cv-00248-JR Document 52 Filed 11/21/2008 Page 18 of 25
15

The history of contributions to soft money committees and to 527 and 

501(c) groups suggest that donors will make large independent 

contributions as a way to avoid contribution limits and to win the favor of 

policymakers. 

FEC Ex. 1, Wilcox Report at 6. 

Yet in an article he co-authored that actually compared soft money donations with 

527 donations, the authors state, “[t]herefore, it follows that the considerations that 

stimulated soft money giving do not automatically transfer to 527 committees.” FEC Ex. 

55, Wilcox et al., Interest Groups, supra, at 120. Indeed, the article makes clear that 

Wilcox’s claim that “[o]verall, individuals associated with the business community gave 

more to 527s in 2004 than they had given in party soft money in 2000” (Wilcox Report at 

11) is a misleading half-truth. As the article states, “the net affect of the abolition of soft 

money, therefore, was not to reduce the role of all individuals who had earned their 

wealth in a business but to substantially displace the role of large, publicly owned 

corporations” with donors associated with smaller businesses who “are much freer, and 

more able financially, to pursue a personal political agenda.” FEC Ex. 55, Wilcox et al., 

Interest Groups, supra, at 120. One of the reasons for this, as the article states, is that 

“officeholders do not ask for the contributions to 527s, so the potential reward is no 

longer so direct.” Id. This is in stark contrast to Wilcox’s claim throughout his report 

that individuals who donate to independent groups will gain influence over candidates 

who are grateful for their support. Moreover, in the article, the authors express 

misgivings about even using terms like “individuals associated with the business 

community” as Wilcox does. They state “[w]hile we have significant reservations about 

treating an individual employee’s contributions as if they reflect the same concerns as an 

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16

employer’s, we nevertheless find the grouping useful because of the question we are 

trying to answer.” Id. at 114. 

c. Clyde Wilcox, Designing Campaign Finance Disclosure in the 

States: Tracing the Tributaries of Campaign Finance, 4 ELECTION 

LAW JOURNAL 371 (2005) (Gall Decl. Ex. I) 

Professor Wilcox also states that “[t]he danger of large direct contributions to 

candidates is well-established in political science.” FEC Ex. 1, Wilcox Report at 5. But 

in the above-reference article, he acknowledged that: “Debate persists in the United 

States about the meaning of ‘corruption,’ ... (and) ... the question of whether 

contributions lead to an ‘undue influence’ of donors on policymakers” (scare quotes in 

the original). Gall Decl. Ex. I, Wilcox, Designing Campaign Finance Disclosure, supra, 

at 373. He also states that it is “...it is exceedingly difficult to prove that corruption has 

occurred, and many observers doubt that corruption is common” (emphasis in the 

original). Id; see also Milyo Rebuttal Decl. at ¶12. 

Traditionally, scholars do not ignore their own prior work when undertaking a 

project that is relevant to that work. But Professor Wilcox omits discussion of his past 

conclusions and analyses that would harm the report he has prepared for the FEC; 

accordingly, the report is unreliable. 

3. Baseless Assertions 

In his report, Professor Wilcox frequently makes conclusory assertions for which 

he does not provide any evidence. See, e.g., FEC Findings of Fact ¶¶ 93, (noting that 

Professor Wilcox supplies no evidence to support his claim that, in instances where 

candidates have asked groups to stop airing ads, the ads “have almost always been aired 

by ideological groups with unsophisticated advertising campaigns”), 116 (noting that 

Professor Wilcox asserts, without evidence, that there has been an increase in the quality 

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17

of independent expenditures and candidate-focused issue advocacy over time), 117 

(noting that Professor Wilcox provides no support for his claim that “[m]ost independent 

expenditures and issue advocacy campaigns are designed by professionals, pretested by 

professionals, and their impact is studied by professionals in order to create more 

effective campaigns for the next election”), 163 (noting that Professor Wilcox’s assertion 

that “independent expenditures have a similar potential for corruption as large direct 

contributions to candidates” is offered with no support and against the weight of legal 

authority), 196 (noting that Professor Wilcox provides no support for his assertion that 

“access-seeking” donors will donate money to independent groups). 

These unsupported conclusions—amounting to mere speculation—are simply 

unreliable. See Freeland, 545 F. Supp. 2d at 87 (“Expert testimony may not be permitted 

where it is based upon speculation.”); Groobert, 219 F. Supp. 2d at 6 (“Expert testimony 

that rests solely on ‘subjective belief or unsupported speculation’ is not reliable.”); see 

also Fed. R. Evid. 702 (requiring that expert opinion be based “upon sufficient facts or 

data”); Advisory Comm. Notes to 2000 Amendments, Fed. R. Evid. 702 (“The trial 

court’s gatekeeping function requires more than simply ‘taking the expert’s word for 

it.’”) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc. 43 F.3d 1311, 1319 (9th Cir. 

1995) (“We’ve been presented with only the experts’ qualifications, their conclusions and 

their assurances of reliability. Under Daubert, that’s not enough.”). 

D. Professor Wilcox’s Report Lacks the Rigor Required by Daubert

It is improper for an academic researcher to first come to a conclusion as to an 

issue and then seek out evidence in support of that conclusion. As Professor Wilcox 

notes, in political science research, one gathers evidence in order to test a hypothesis. 

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18

FEC Ex. 18, Wilcox Dep. at 19:14-21 (“Q. Is it fair to say that one of the purposes of 

conducting research in political science is to ensure that theories or hypotheses are 

actually based on empirical evidence? A. Now, that's not quite the way I'd word it, but 

you gather empirical evidence to test the theory or hypothesis, right? So if you accept 

that rephrasing, then yes.”). But, in putting together his report, Professor Wilcox steered 

clear of evidence that would put his conclusions to the test. As Plaintiffs’ expert Jeffrey 

Milyo states: 

Wilcox cites several articles published in edited volumes, but ignores 

selections from those same volumes that contradict his jaundiced view of 

large contributions. Similarly, Wilcox approvingly cites selected passages 

from an author, but Wilcox does not refer to other relevant passages from 

the same article that contradict his argument. Wilcox also ignores 

inconvenient evidence from a high profile article in his report, but he does 

include the same article in the required reading list for his seminar course 

on “Money in American Politics” at Georgetown. 

Milyo Rebuttal Decl. at ¶ 52. 

Professor Wilcox’s work is “riddled with logical errors and factual omissions. 

However, this sloppiness does not appear to be random; in every instance, these errors 

and omissions serve to support Wilcox’s argument.” Milyo Rebuttal Decl. at ¶ 50. 

Perhaps his haste contributed to Professor Wilcox’s abandonment of research 

avenues he would otherwise walk and led him to accept research done by those with a 

stake in what conclusions he would draw. Of course, Professor Wilcox could have saved 

time by presenting a more focused, fact-based report. But saving time by wholly 

abandoning the methodological requirements that his discipline requires is unacceptable. 

See, e.g., Wessmann v. Gittens, 160 F.3d 790, 805 (1st Cir. 1998) (“The only excuse that 

Dr. Trent proffered for his failure to follow proper protocols was that a thorough study 

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19

would have required more time than he had available. That is unacceptable.”) (internal 

citation omitted). 

As the Supreme Court said in Daubert, “the word ‘knowledge’ connotes more 

than subjective belief or unsupported speculation.” 509 U.S. at 590. And the Fifth 

Circuit, in deciding on the admissibility of expert evidence, noted that 

many experts are members of the academic community who supplement 

their teaching salaries with consulting work. We know from our judicial 

experience that many such able persons present studies and express 

opinions that they might not be willing to express in an article submitted 

to a refereed journal of their discipline or in other contexts subject to peer 

review. We think that is one important signal, along with many others, that 

ought to be considered in deciding whether to accept expert testimony. 

In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1234 (5th Cir. 1986). See also 

Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997) (stating that, to 

admit expert evidence, a judge must “satisfy himself that the expert is being as careful as 

he would be in his regular professional work outside his paid litigation consulting.”). But 

even Professor Wilcox admits that what he submitted on August 15th does not meet the 

same standards as his academic work: 

Q. Does it, in your view, meet the standards of what a scholarly work 

would be? 

A. If by scholarly you mean something that I would submit for 

publication? No. But if you mean I might have seen to put it up on the 

Internet? No. 

FEC Ex. 18, Wilcox Dep. at 71:11-15. 

This admission squares with Professor Milyo’s conclusion that, “[b]ased on this 

pattern of errors and omissions, I conclude that Wilcox has not faithfully and competently 

utilized his expertise in producing his report.” Milyo Rebuttal Decl. at ¶ 54. The 

opinions Professor Wilcox puts forward in his report are conclusory and the fruits of a 

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20

slanted, poorly-developed body of evidence. Because Professor Wilcox has not 

displayed the level of intellectual rigor required by his profession in other settings, 

Plaintiffs ask that the Court grant their motion to exclude from evidence the report and 

testimony of Defendant’s expert witness Clyde Wilcox, and further that the Court 

disregard all of the FEC’s proposed findings of fact based on Professor Wilcox’s report 

or deposition testimony. (The paragraphs that cite to the Wilcox report or his deposition 

testimony are listed in the accompanying motion.) 

Dated: November 21, 2008. 

Respectfully submitted, 

/s/ Steven M. Simpson

Robert Gall (DC Bar No. 482476) 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

*Admitted Pro Hac Vice 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this 21st Day of November, 2008, a true and correct 

copy of MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFFS’ SECOND MOTION IN LIMINE and ACCOMPANYING 

DECLARATIONS AND EXHIBITS was electronically filed using the court’s ECF 

system and sent via the ECF electronic notification system to the following counsel of 

record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

DECLARATION OF JEFFREY MILYO, Ph.D., 

IN SUPPORT OF PLAINTIFFS’ RESPONSE TO 

DEFENDANT’S PROPOSED FINDINGS OF FACT 

_______________________________________________________

I, JEFFREY MILYO, Ph.D., declare under penalty of perjury that the following is true: 

1. I am a citizen of the United States, a resident of the State of Missouri, and 

over the age of 18 years. I make this declaration in support of plaintiffs’ response to 

defendant’s proposed findings of fact. This declaration is based on my personal 

knowledge of the facts stated herein. 

2. Attached to this declaration as Exhibit A is a reference list of works cited 

throughout the declaration. 

3. There are four important points on which Wilcox and I agree in our respective 

reports: 

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2

a. Wilcox argues that limits on contributions to groups that exist to make 

independent expenditures will result in fewer contributions to these groups 

and less spending by these groups. In my report, I also argue that 

contribution limits on groups like SpeechNow will have a negative impact 

on both i) the ability of individual donors to support independent groups of 

their choosing, and ii) the ability of independent groups to get their 

message out to the public by reducing the total amount of independent 

expenditures. 

b. Wilcox argues that independent expenditures are important political 

activities that have the potential to affect public policy debates; further, 

Wilcox argues that limits on contributions to groups that make 

independent expenditures will have a detrimental impact on the ability of 

independent groups to affect public policy debates. I also argue that 

independent expenditures by groups like SpeechNow are an important 

form of political participation and speech, and that limits on contributions 

will have a negative impact on the effectiveness of such groups. 

c. Wilcox does not cite any scientific studies of the treatment effect of 

independent expenditures on either political corruption or the appearance 

of corruption. This is consistent with my claim that there are no such 

studies. 

d. Wilcox does not cite any scientific studies of the treatment effect of 

campaign contribution limits of any sort on either political corruption or 

the appearance of corruption. This is consistent with my claim that there 

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3

are no such systematic studies, except for Primo and Milyo (2006), who 

examine the treatment effect of campaign finance laws on public opinion 

regarding political efficacy.1

4. The overall argument made by Wilcox is spurious. 

5. A succinct outline of Wilcox’s argument is: i) independent expenditures are 

valuable to incumbents, ii) incumbents might reward groups that provide things of value 

to them, iii) this has the potential to lead to activities that are corrupt or appear corrupt, 

iv) therefore, contributions to groups that make independent expenditures should be 

limited. 

6. Wilcox makes no attempt to weigh the benefits and costs of independent 

expenditures. This is not a rational approach to public policy making! His argument is 

essentially that if unlimited contributions to groups that make independent expenditures 

might possibly be related to a corrupt activity, then they should be prohibited. This is 

akin to arguing that if motorists can use highways to violate the speed limit, then 

highways should be abolished—except that excessive speed is easily defined and 

measured (unlike political corruption) and motorists do not have a right to the highway 

(while the rights to speak, associate and petition government are protected by the 

Constitution). 

7. The logic of Wilcox’s argument can be extended to other political activities. 

For example, consider a group of community organizers that work to get out the vote in 

neighborhoods that are home to citizens that disproportionately support the incumbent. 

 

1

There exist a handful of studies that superficially examine the association between limits on contributions 

to candidates and political corruption with mixed results (e.g. Stratmann 2003; Alt and Lassen 2003; 

Maxwell and Winters 2005); however, these studies do not convincingly identify the treatment effect of 

contribution limits because they do not examine changes in limits on changes in corruption within 

state/country. Wilcox does not mention any of these studies in his report. 

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4

Such activity would be valuable to the incumbent, and so by the logic of Wilcox’s 

argument, should be limited. As another example, consider a group of campaign 

volunteers that go above and beyond what is expected in providing services to an 

incumbent’s campaign (working late nights and weekends, engaging in enthusiastic voter 

outreach activities, etc.); such activities would also be valuable, and so according to 

Wilcox’s logic should also be outlawed or severely curtailed. Finally, an incumbent 

politician may enjoy disproportionate popularity among environmentalists, or women, or 

union members, or residents of a certain geographical area, etc.; the votes of such interest 

groups are also valuable to the incumbent, and so, again, should be prohibited or 

restricted by Wilcox’s argument. 

8. The notion that non-monetary activities may have substantial value to a 

candidate is not just hypothetical. For example, celebrities often endorse candidates and 

sometimes appear or even perform at fundraisers. Further, recent scholarly studies 

quantify the effects of Oprah Winfrey’s endorsement of Barack Obama and the value of a 

candidate’s appearance on the “Colbert Report” (Garthwaite and Moore 2008; and 

Fowler 2008). For example, the “Oprah” endorsement is estimated to have been worth 

about 1,000,000 votes for Obama in the Democratic primary! Even ignoring this 

estimate, for a political candidate, time spent with Oprah is undoubtedly valuable. For 

example, in 2004 a 30 second national advertising spot on Oprah Winfrey’s syndicated 

morning television program was priced at $70,000 (CBS News 2004); so even a few 

minutes on Oprah’s show can be conservatively valued at several hundred thousand 

dollars. By Wilcox’s logic, candidates should not be allowed to appear on popular 

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5

television shows and celebrities should be forbidden from endorsing their preferred 

candidates. 

9. Finally, studies of the electoral effects of newspaper endorsements indicate 

that such endorsements are typically worth between one and five percentage points to a 

candidate (Ansolabehere et al. 2006); again, by Wilcox’s logic the New York Times and 

other newspapers should be prohibited or restricted from making such valuable 

endorsements, lest they open a door to possible corruption. 

10. The absurdity of these arguments (that GOTV, volunteer campaign workers, 

endorsements and even voting itself are all suspect activities that should be drastically 

curtailed or prohibited) underscores the flaw in Wilcox’s logic. 

11. Wilcox refers to “corruption” and “undue influence” without either defining 

these terms or even acknowledging that political scientists and legal scholars have long 

recognized that these concepts are ambiguous and problematic (e.g., Lowenstein 1985, 

1995, and 2004). 

12. In contrast, in his scholarly writings Wilcox (2005) does acknowledge that: 

“Debate persists in the United States about the meaning of ‘corruption,’ ... (and) ... the 

question of whether contributions lead to an ‘undue influence’ of donors on 

policymakers” (scare quotes in the original). Further, Wilcox (2005) notes: “...it is 

exceedingly difficult to prove that corruption has occurred, and many observers doubt 

that corruption is common” (emphasis in the original). This discrepancy between 

Wilcox’s scholarship and his expert report is disconcerting. 

13. Wilcox summarizes his Section I by stating that allowing unlimited 

contributions to groups that make independent expenditures “...would in many cases lead 

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6

to preferential access and influence for donors, and poses a significant risk of 

corruption.” Even this summary statement is problematic in several respects. 

14. First, “many cases” compared to what? How many is many? Wilcox never 

addresses whether this means most cases or 1% of those cases or something less. On 

page 4, Wilcox makes a similar statement, but substitutes “frequently” for “many cases”. 

Of course, no such frequency is ever calculated or referred to in his report. Instead, 

Wilcox really only argues that it is possible for independent expenditures to lead to 

access and influence. Consequently, Wilcox confuses the possibility of something 

occurring with the actual and frequent occurrence of that activity (this is a recurring 

problem in his report). 

15. Second, “access and influence” is a more broad concept than political 

corruption; “access and influence” also describes the effect of political activities that are 

both legal and socially desirable. What would be the point of citizens’ rights to speech, 

association and petition if these activities don’t lead to access and influence? Moreover, 

it is quite informative that Wilcox does not claim that independent expenditures lead 

specifically to “political corruption” here, but rather he refers only to vague and general 

effects. Of course, Wilcox’s argument would be much stronger if he were to claim that 

independent expenditures or contributions to groups that make independent expenditures 

lead to corruption; the fact that he does not leads me to infer that Wilcox understands that 

there is no compelling and direct scientific evidence that independent expenditures or 

contributions to groups that make independent expenditures lead to political corruption. 

This point is reinforced by the fact that the next phrase references only the “risk of 

corruption.” 

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7

16. Third, “significant risk of corruption” implies some quantification of the 

probability of corruption; however, Wilcox does not make any such calculation, nor does 

he cite any studies that produce such a calculation. Thus this choice of words is 

misleading. Social scientists mean something very specific by statements like 

“significant risk,” but Wilcox here is not referring to any statistical result; instead, he is 

using “significant risk” in a more colloquial sense to convey that the risk is non-trivial in 

his opinion. Of course, Wilcox never describes how much of a risk is non-trivial in his 

opinion; would it be a 1% chance or a 0.0000001% chance? Who knows? As a result, 

this claim is meaningless except to convey that there exists some possibility that 

corruption might occur. 

17. Putting these observations together, a clearer and more succinct summary for 

this section of the Wilcox report would be: “Allowing unlimited contributions to groups 

that make independent expenditures may or may not lead to some instances of illegal 

activities.” 

18. Wilcox exhibits a similarly sloppy use of language in several places in his 

report. 

19. For example, Wilcox states that “...candidates appreciate independent 

expenditures campaigns, and would be likely to reward those who fund them.... There is 

evidence that indirect contributions have been associated with corruption in the past” 

(page 6; emphasis added). When a social scientist uses words such as “likely” and 

“associated” they usually imply a statement based upon a statistical analysis. However, 

Wilcox has not conducted any assessment of the probability that candidates reward 

contributors (of any sort), nor does he cite any such assessment. Similarly, Wilcox does 

Case 1:08-cv-00248-JR Document 52-12 Filed 11/21/2008 Page 7 of 19
8

not examine the empirical frequency of incidences of corruption over time and whether 

these are systematically related to independent expenditures. Instead, Wilcox really only 

argues that it is possible that candidates reward donors, and that it is possible for 

independent expenditures to be part of a corrupt activity. Consequently, Wilcox again 

misses the fundamental distinction between the possibility of some activity occurring and 

the actual frequent occurrence of that activity. 

20. Another example of slippery use of terms is seen when Wilcox notes that 

some contributors give money to candidates for “business reasons” (page 6). What 

exactly constitutes “business reasons”? Who knows? But there’s no reason to assume 

this has anything to do with political corruption. There is nothing unseemly about 

supporting a candidate or party out of self-interest; indeed, many candidates make direct 

appeals to voters’ pocketbooks (e.g., “Are you better off now than you were four years 

ago?”). 

21. It is also worth noting that Wilcox does not indicate any comparable 

frequency for other reasons for giving, such as an ideological motive. But since a 

minority of contributors indicates that business is a primary motive, it must be the case 

that other motives, like ideology, dominate the decision to give to candidates. However, 

Wilcox does not present any systematic evidence about the motivations of individuals 

that make independent expenditures or make contributions to groups that make 

independent expenditures. Are contributors to candidates more likely to give for 

“business reasons” than contributors to independent expenditure campaigns? Perhaps, 

but Wilcox does not present any such evidence. Yet, Wilcox concludes in his report that 

contributions to independent expenditure committees pose the same danger for corruption 

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as direct contributions to candidates. This equivalence is unsupported by any empirical 

evidence. Once again, Wilcox at best argues that it is possible that contributors to 

independent expenditure committees have similar motives as those that give directly to 

candidates; he then confuses this possibility with an actual equivalence. 

22. In Section I of his report, Wilcox states that “the danger of large direct 

contributions to candidates is well-established in political science”; Wilcox then 

elaborates this danger as “special access and particularistic policy favors to donors... 

explicit and implicit quid-pro-quo relationships.” This statement gives the misleading 

impression that there is a consensus among scholars that there is strong evidence that 

contributions cause corruption. However, Wilcox does not provide any citations to 

empirical studies to support these statements, nor does he acknowledge that his own 

scholarship is inconsistent with this claim (Wilcox 2005; see ¶ 11 above). 

23. Elsewhere in his report (p.21), Wilcox admits that there is little relationship 

between PAC contributions and roll-call votes (albeit, again without citation to actual 

studies); this admission is difficult to reconcile with his earlier assertion that there is a 

well-established connection between contributions and explicit quid-pro-quo 

relationships. 

24. Wilcox then asserts that because studies of PAC contributions and roll-call 

votes do not include independent expenditures, such studies understate the effects of 

contributions. This is not necessarily so; if groups that make PAC contributions also 

make independent expenditures, then studies of the effects of PAC contributions on rollcall votes would overstate the effects of PAC contributions. 

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25. Wilcox then falls back on the claim that PAC contributions buy access to 

legislators; however, to the extent that access affects roll-call votes, this should also be 

manifest in the relationship between PAC contributions and roll-call votes (but it isn’t). 

26. Further, Wilcox cites Hall and Wayman (1990) in support of the claim that 

contributions to candidates buy access to legislators; however, the study by Hall and 

Wayman is methodologically flawed and hence “almost surely biased” (Snyder 2002). 

Beyond this, Wilcox ignores contrary evidence in Wawro (2000) that is more 

comprehensive and systematic than the three cases examined by Hall and Wayman. 

27. Wilcox ignores scholars that argue that campaign contributions have a limited 

impact on policy outcomes (e.g., Ansolabehere et al. 2003, Milyo et al. 2000, Snyder 

2002); this despite the fact that Wilcox assigns such studies (e.g., Ansolabehere et al. 

2003) as required reading in his course on “Money in American Politics” at Georgetown.2

28. Wilcox also ignores or is unaware of a recent study by Ansolabehere and 

Snyder (2004) that is particularly relevant to his discussion of soft money and his 

assertion that donors benefit from making contributions. The authors of this study 

demonstrate that the share prices of firms that gave large amounts of soft money preBCRA were not adversely affected by BCRA. This strongly suggests that those firms 

were not receiving any important policy favors as a result of their soft money 

contributions. 

29. Wilcox does cite an opinion-laden essay by Malbin (2008) in support of the 

broad claim that campaign contributions are a corrupting influence; however, Wilcox 

fails to note anywhere in his report that Malbin also argues that independent expenditures 

 

2

 Course syllabus viewed at: https://www9.georgetown.edu/faculty/wilcoxc/Government%20374.doc. 

 

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have less potential for corruption than direct contributions to candidates (Wilcox later 

takes a contrary position in his report). 

30. Wilcox also fails to acknowledge that several scholars consider corruption 

from campaign contributions to be a “small societal problem” (e.g., Ansolabehere 2007; 

see also Ansolabehere et al. 2001 and 2003). Further, opinion surveys consistently reveal 

that respondents do not consider campaign finance reform to be an important issue (e.g., 

Mayer 2001). 

31. Wilcox also argues that large contributions “lead to increased public 

perceptions of corruption” (page 5). The only empirical study cited in support of this 

claim is Shapiro (2003); however, Shapiro merely demonstrates that survey respondents 

have cynical attitudes about elected officials and the role of money in politics. Shapiro 

does not estimate the treatment effect of either contributions or limits on contributions on 

public opinion. It is therefore inaccurate to cite Shapiro in support of the claim that large 

contributions increase public perceptions of corruption. 

32. In fact, Wilcox fails to cite a number of other recent and relevant studies on 

campaign finance and the appearance of corruption, all of which would contradict his 

argument that large contributions increase public perceptions of corruption. 

33. In the same edited volume as the Shapiro study, Primo (2003) presents 

evidence that changes in trust in government over time do not support the notion that 

either campaign spending or contribution limits have an important impact on citizen trust. 

34. In my original report, I note that Primo and Milyo (2006) is the only study to 

estimate the treatment effect of campaign finance regulations on public opinions about 

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government; in that study we find little support for the notion that contribution limits 

increase public trust in government. 

35. Notably, Malbin (2008), who is cited approvingly by Wilcox in his report, 

discusses the findings in Primo and Milyo and argues in reference to BCRA: “...it is true 

that some of the bill’s sponsors, reformers and newspaper editorial boards talked about 

contribution limits as if they would reverse the public’s cynicism about government. But 

it was never plausible to expect changes in campaign finance law by themselves 

measurably to improve citizens’ views about government” (emphasis added). 

36. Persily and Lammie (2004) also examine perceptions of corruption; they 

argue that citizens’ general views of government, social capital and demographic 

attributes appear to drive perceptions of corruption; they do not find evidence consistent 

with the notion that campaign finance is an important determinant of perceptions of 

corruption. 

37. Persily and Lammie also question the extent to which public opinion about 

corruption is related to actual political corruption; they note that the public is notoriously 

ill-informed about even very basic campaign finance facts. It is therefore no surprise that 

perceptions of corruption are not strongly related to campaign contribution limits. 

38. One explanation for the public’s lack of knowledge about campaign finance is 

that the issue is considered unimportant by most citizens (e.g., Mayer 2001); further, 

newspaper reporting of campaign finance stories is notoriously sensationalized 

(Ansolabehere et al. 2005). 

39. Despite the widespread and misinformed cynicism that exists about the role of 

money in politics, it is also well known that large numbers of survey respondents 

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frequently support eliminating all contribution limits. For example, Grant and Rudolph 

(2004) demonstrate that a majority of survey respondents support removing all 

contribution limits. 

40. Finally, as I mention in my original report, Coleman and Manna (2000) also 

argue that there is little or no relationship between campaign spending and trust in 

government. 

41. I find it disconcerting that in discussing the effects of campaign spending and 

contribution limits on the appearance of corruption, Wilcox fails to mention any of the 

studies cited above. Nor does Wilcox even raise a single caveat regarding his 

unsupported claim that large contributions exacerbate the appearance of corruption. 

42. Wilcox claims that “...a large contribution to an independent expenditure 

campaign is always worth more to the candidate than a smaller, regulated contribution to 

the candidate.” (page 14; emphasis added). This is an odd claim, since Wilcox does not 

base it on statistical estimates of the relative effectiveness of independent expenditures 

versus direct contributions, but I suppose “large” can always be defined close enough to 

infinity that the claim is trivially true (and therefore vacuous). 

43. However, subsequently Wilcox claims that even though some independent ads 

do not help candidates, “more frequently” issue ads “are more valuable than a direct 

contribution to the candidate.” (page 15; emphasis in original). This claim is 

unsupported; Wilcox has not analyzed the effectiveness of a representative sample of 

equal-sized independent expenditures versus direct contributions; he simply has no basis 

for making claims about the frequency with which independent ads are more valuable 

Case 1:08-cv-00248-JR Document 52-12 Filed 11/21/2008 Page 13 of 19
14

than direct contributions. Again, Wilcox has confused the possibility of something 

occurring, with the actuality that it occurs frequently. 

44. To his credit, Wilcox later states that “in some cases” an independent 

expenditure may help a candidate more than an equivalent amount given directly as a 

campaign contribution (page 15-16). 

45. But, in the conclusion to his report, Wilcox again makes unsupported claims 

to the effect that a $10,000 contribution to an independent expenditure committee “...will 

most often be more valuable than the maximum allowable direct contribution” and that a 

contribution of $100,000 to an independent expenditure committee “...will always be far 

more valuable...” (pages 25-26; emphasis added). These may be reasonable surmises to 

Wilcox, but he has no evidence or expertise that allows him to state these claims as fact. 

46. Wilcox asserts that “the value of independent expenditures is not substantially 

reduced by their lack of explicit coordination with campaigns.” (page 16). Once again, 

this claim is not supported by any systematic study which estimates the treatment effects 

of coordinated and uncoordinated expenditures. As before, Wilcox confuses the 

possibility of something with its actual occurrence in most or all instances. 

47. Further, by making this assertion, Wilcox denies the possibility of truly 

independent expenditures, as defined by law. This point is underscored when Wilcox 

concludes that “the danger of corruption from unlimited contributions directly to 

independent expenditure committees is the same as that of unlimited contributions 

directly to candidates.” (page 4; emphasis added). Thus according to Wilcox, the 

independence of a committee is not a safeguard against corruption; this contradicts not 

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15

only the law, but as I describe in my original report, well-established results from game 

theory and human subject experiments on the efficacy of implicit cooperation. 

48. The assertion that an independent expenditure committee like SpeechNow is 

functionally no different from a PAC that makes direct contributions is erroneous in other 

respects. First, connected PACs may have their overhead costs paid for by the connected 

organization; an unconnected independent expenditure committee like SpeechNow must 

pay all its overhead costs out of limited hard-money contributions (which presumably 

have a higher opportunity cost). 

49. Second, compliance with campaign finance regulations is costly and 

burdensome, like any other regulation, although compliance costs are rarely studied in the 

campaign finance literature. A connected PAC may have a sponsoring organization that 

provides sufficient funds to employ a full-time professional staff; while independent 

groups like SpeechNow may not have the same resources.

Conclusion 

50. Overall, I find the Wilcox report to be riddled with logical errors and factual 

omissions. However, this sloppiness does not appear to be random; in every instance, 

these errors and omissions serve to support Wilcox’s argument. 

51. Wilcox articulates a grossly inaccurate and incomplete characterization of the 

relevant social science scholarship on the “danger” of large contributions; once again, 

Wilcox’s report is strongly biased in support of his argument. 

52. I also note that Wilcox cites several articles published in edited volumes, but 

ignores selections from those same volumes that contradict his jaundiced view of large 

contributions. Similarly, Wilcox approvingly cites selected passages from an author, but 

Case 1:08-cv-00248-JR Document 52-12 Filed 11/21/2008 Page 15 of 19
Case 1:08-cv-00248-JR Document 52-12 Filed 11/21/2008 Page 16 of 19
MILYO REBUTTAL DECLARATION 

EXHIBIT A 

Case 1:08-cv-00248-JR Document 52-12 Filed 11/21/2008 Page 17 of 19
References: 

Alt, James and David Lassen. 2003. “The Political Economy of Institutions and 

Corruption in American States,” Journal of Theoretical Politics, 15(2): 341-365. 

Ansolabehere, Stephen. 2007. “The Scope of Corruption: Lessons from Comparative 

Campaign Finance Disclosure,” Election Law Journal, 6(2): 163-183. 

Ansolabehere, Stephen and James Snyder. 2004. “Did Firms Profit from Soft Money?” 

Election Law Journal, 3(2): 193-198. 

Ansolabehere, Stephen, Rebecca Lessem and James Snyder. 2006. “The Orientation of 

Newspaper Endorsements in U.S. Elections,” Quarterly Journal of Political Science, 1: 

393-404. 

Ansolabehere, Stephen, Erik Snowberg and James Snyder. 2005. “Unrepresentative 

Information: The Case of Newspaper Reporting on Campaign Finance,” Public Opinion 

Quarterly, 69(2): 213-231. 

Ansolabehere, Stephen, John de Figueiredo, and James Snyder. 2003. “Why is There So 

Little Money in U.S. Politics?” Journal of Economic Perspectives, 17(1): 105-130. 

Ansolabehere, Stephen, Alan Gerber and James Snyder. 2001. “Corruption and the 

Growth of Campaign Spending,” in A User’s Guide to Campaign Finance Reform, 

Gerald Lubenow, ed. (Rowman and Littlefield: Lanham, MD). 

CBS News 2004. “Oprah Giveaway A Marketing Gambit: Pontiac, Talk Show Host Team 

For Ultimate In Product Placement,” viewed at: 

http://www.cbsnews.com/stories/2004/09/13/entertainment/main643141.shtml

Coleman, John and Paul Manna. 2000. “Congressional Campaign Spending and the 

Quality of Democracy,” Journal of Politics, 62(3): 757-789. 

Fowler, James. 2008. “The Colbert Bump in Campaign Donations: More Truthful than 

Truthy,” PS: Political Science and Politics, 41(3): 533-538. 

Garthwaite, Craig and Timothy Moore. 2008. “The Role of Celebrity Endorsements n 

Politics: Oprah, Obama, and the 2008 Democratic Primary,” manuscript, University of 

Maryland. 

Grant, J. Tobin and Thomas Rudolph. 2004. Expression vs. Equality. (Ohio State 

University Press: Columbus, OH). 

Hall, Richard and Frank Wayman. 1990. “Buying Time: Moneyed Interests and the 

Mobilization of Bias in Congressional Committees,” American Political Science Review, 

84(3): 797-820. 

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Lowenstein, Daniel. 1985. “Political Bribery and the Intermediate Theory of Politics,” 

UCLA Law Review, 784: 804. 

Lowenstein, Daniel. 1995. “Campaign Contributions and Corruption: Comments on 

Strauss and Cain,” The University of Chicago Legal Forum, pp. 163-192. 

Lowenstein, Daniel. 2004. “When is a Campaign Contribution a Bribe?” in Private and 

Public Corruption, William Heffernan and John Kleinig, eds. (Rowman and Littlefield: 

Lanhalm, MD). 

Malbin, Michael. 2008. “Rethinking the Campaign Finance Agenda,” The Forum, 6(1): 

Article 3. 

Maxwell, Amanda and Richard F. Winters. 2005. “Political Corruption in America.” 

Manuscript,. Dartmouth College, 

Mayer, William. 2001. “Public Attitudes on Campaign Finance,” in A User’s Guide to 

Campaign Finance Reform, Gerald Lubenow, ed. (Rowman and Littlefield: Lanham, 

MD). 

Persily, Nathaniel and Kelli Lammie. 2004. “Perceptions of Corruption and Campaign 

Finance: When Public Opinion Determines Constitutional Law,” University of 

Pennsylvania Law Review, 153: 119-180. 

Primo, David. 2003. “Campaign Contributions, the Appearance of Corruption, and Trust 

in Government,” in Inside the Campaign Finance Battle: Court Testimony on the New 

Reforms. Anthony Corrado, Thomas Mann, and Trevor Potter, eds. (The Brookings 

Institution Press: Washington, DC). 

Shapiro, Robert. 2003. “Public Attitudes Toward Campaign Finance Practice and 

Reform,” in Inside the Campaign Finance Battle: Court Testimony on the New Reforms. 

Anthony Corrado, Thomas Mann, and Trevor Potter, eds. (The Brookings Institution 

Press: Washington, DC). 

Snyder, James. 2002. “Rebuttal Report of Professor James Snyder, Jr.,” McConnell v. 

FEC. 

Strattmann, Thomas. 2003. “Do Strict Electoral Campaign Finance Rules Limit 

Corruption?” CESifo DICE Report 1/2003, pp 24-27. 

Wawro, Gregory. 2000. Legislative Entrepreneurship in the United States House of 

Representatives. (University of Michigan Press: Ann Arbor, MI). 

Wilcox, Clyde. 2005. “Designing Campaign Finance Disclosure in the States: Tracing 

the Tributaries of Campaign Finance,” Election Law Journal, 4(4): 371-386. 

Case 1:08-cv-00248-JR Document 52-12 Filed 11/21/2008 Page 19 of 19
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

ORDER GRANTING PLAINTIFFS’ SECOND MOTION IN LIMINE

_______________________________________________________

 For good cause shown, Plaintiffs’ Second Motion in Limine is GRANTED. 

Accordingly, FEC Exhibit 1, Report of Expert Witness Clyde Wilcox, shall be excluded 

from evidence. 

Further, Defendant’s Proposed Findings of Fact relying on Defendant’s Exhibit 1 

and contained in ¶¶ 79, 80, 81, 82, 83, 84, 85, 87, 88, 90, 91, 92, 93, 94, 95, 97, 100, 106, 

116, 117, 118, 119, 121, 122, 123, 124, 126, 127, 128, 129, 132, 133, 134, 135, 137, 138, 

139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 156, 157, 

158, 159, 163, 164, 165, 166, 176, 177, 181, 186, 190, 191, 192, 193, 194, 195, 196, 203, 

208, 209, 210, 211, 212, 213, 214, 215, 217, 218, 219, 220, 222, 223, 226, 227, 228, 230, 

237, 238, 240, 245, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 

Case 1:08-cv-00248-JR Document 52-13 Filed 11/21/2008 Page 1 of 2
2

263, 264, 265, 269, 270, 271, 274, 275, 276, 309, 314, 315, 328, 339, 340, 341, 350, 351, 

352, 358, 359, 361, 362, 363, 364, 365, 366, and 367 shall not be adopted. 

Further, FEC Exhibit 18, the Deposition Transcript of Clyde Wilcox, shall be 

excluded from evidence. Defendant’s Proposed Findings of Fact relying on that exhibit 

and contained in ¶¶ 131, 136, 185, 242, 244, 336, and 337 shall not be adopted. 

SO ORDERED this ____ day of ________________, 2008. 

 _____________________________________ 

 James Robertson, United States District Judge 

Case 1:08-cv-00248-JR Document 52-13 Filed 11/21/2008 Page 2 of 2