No. 17-1297 

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

In The 

Supreme Court of the United States 

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

LAURA HOLMES, et al., 

Petitioners, 

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 OF AMICUS CURIAE INSTITUTE FOR 

JUSTICE IN SUPPORT OF PETITIONERS 

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

INSTITUTE FOR JUSTICE

PAUL M. SHERMAN* 

901 North Glebe Road, 

 Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

psherman@ij.org 

*Counsel of Record 

Counsel for Amicus Curiae 

 Institute for Justice

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

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ........................................ i 

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

INTEREST OF AMICUS CURIAE ........................ 1 

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

REASONS FOR GRANTING THE PETITION ..... 3 

 I. Federal Courts Are Consistently Relying on 

Anecdotal or Distorted Evidence – or No 

Evidence at All – in Resolving CampaignFinance Cases .............................................. 3 

 II. The Decision Below Highlights Widespread 

Problems with This Court’s IntermediateScrutiny Jurisprudence ............................... 11 

CONCLUSION ....................................................... 18 
ii 

TABLE OF AUTHORITIES 

Page 

CASES 

Arizona Free Enterprise Club’s Freedom Club 

PAC v. Bennett, 564 U.S. 721 (2011) ......................... 1 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. 

Comm’n, 447 U.S. 557 (1980) ................ 12, 14, 15, 16 

Citizens United v. FEC, 558 U.S. 310 (2010) ........ 12, 14 

City of Los Angeles v. Alameda Books, Inc., 535 

U.S. 425 (2002) ........................................................ 12 

Craig v. Boren, 429 U.S. 190 (1976) ............................ 17 

Edenfield v. Fane, 507 U.S. 761 (1993) ................... 3, 15 

FCC v. Fox Television Stations, Inc., 556 U.S. 502 

(2009) ....................................................................... 13 

FCC v. Pacifica Found., 438 U.S. 726 (1978) .............. 13 

Green Party of Conn. v. Garfield, 616 F.3d 189 

(2d Cir. 2010) ........................................................... 16 

Holder v. Humanitarian Law Project, 561 U.S. 1 

(2010) ....................................................................... 12 

Kovacs v. Cooper, 336 U.S. 77 (1949) .......................... 12 

Madsen v. Women’s Health Ctr., 512 U.S. 753 

(1994) ........................................................... 12, 13, 15 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ............... 11 

Minority Television Project, Inc. v. FCC, 736 F.3d 

1192 (9th Cir. 2013) ................................................. 17 

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

(2000) ......................................................... 2, 3, 14, 16 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Pagan v. Fruchey, 492 F.3d 766 (6th Cir. 2007) ..... 16, 17 

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) ........... 16 

Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ... 12, 13 

Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 

2010) ........................................................................ 16 

Snyder v. Phelps, 131 S. Ct. 1207 (2011) .................... 14 

Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) ........ 14 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 

2010) .......................................................................... 1 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 

(1994) ....................................................................... 12 

United States v. Alvarez, 132 S. Ct. 2537 (2012) ........ 14 

United States v. O’Brien, 391 U.S. 367 (1968) ...... 12, 15 

United States v. Stevens, 559 U.S. 460 (2010) ............ 13 

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

(1989) ....................................................................... 15 

Worley v. Fla. Sec’y of State, 717 F.3d 1238 (11th 

Cir. 2013) ................................................................. 16 

CONSTITUTIONAL PROVISION

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

RULE

Sup. Ct. R. 10(c) .......................................................... 18 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

OTHER PUBLICATIONS

Adriana Cordis & Jeff Milyo, Do State Campaign 

Finance Reforms Reduce Public Corruption?, 

Mercatus Center Working Paper 13-09 (April 

2013), available at http://mercatus.org/sites/ 

default/files/Milyo_CampaignFinanceReforms_ 

v2.pdf ............................................................................. 6 

American National Election Studies, http://www. 

electionstudies.org (last visited April 11, 2018) ......... 5 

Angus Campbell et al., The Voter Decides (1954) .......... 4 

Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. Ill. L. Rev. 783 

(2007) ....................................................................... 12 

David M. Primo, Campaign Contributions, the 

Appearance of Corruption, and Trust in Government, in Inside the Campaign Finance 

Battle: Court Testimony on the New Reforms, 

285 (A. Corrado et al. eds., 2003) .......................... 6, 7 

David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence 

from the States, 5 Election L.J. 23 (2006) ......... 4, 5, 6 

Jack Citrin, Comment: The Political Relevance of 

Trust in Government, 68 Am. Pol. Sci. Rev. 973 

(1974) ......................................................................... 4 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Jeff Milyo, Do State Campaign Finance Reforms 

Increase Trust and Confidence in State Government? (March 2016) (unpublished paper), available at http://web.missouri.edu/~milyoj/files/CFR 

%20and%20trust%20in%20state%20government_ 

v8.pdf ............................................................................. 6 

Nathaniel Persily & Kelli Lammie, Perceptions of 

Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 

U. Pa. L. Rev. 119 (2004) ............................................... 7 
1 

INTEREST OF AMICUS CURIAE1

The Institute is a nonprofit, public-interest legal 

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

and educational liberty, and the free exchange of ideas. 

As part of that mission, the Institute has litigated 

cases across the country challenging laws that restrict 

the ability of Americans to finance political speech, including representing petitioners in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 

(2011), and the plaintiffs in SpeechNow.org v. FEC, 599 

F.3d 686 (D.C. Cir. 2010) (en banc), which struck down 

limits on contributions to independent expenditure 

committees. 

 The Institute is concerned about the growing 

disconnect between the best social-science evidence 

on campaign-finance laws – which shows that such 

laws have little or no effect on public perceptions of corruption or trust in government – and the tendency of 

lower courts to accept those laws uncritically. The Institute is also concerned that the decision below adds 

to the confusion regarding the rigor of so-called “exacting scrutiny,” which is part of a broader confusion 

1

 All parties received timely notice and have consented to the 

filing of this brief. No counsel for a party authored this brief in 

whole or in part, and no such counsel or any party made a monetary contribution intended to fund the preparation or submission 

of this brief. No person or entity, other than amicus and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief. 
2 

regarding this Court’s intermediate-scrutiny jurisprudence. 

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

SUMMARY OF THE ARGUMENT 

 This case provides an important opportunity for 

this Court to clarify the role that social-science evidence should play in campaign-finance jurisprudence. 

As discussed in Section I, although this Court has previously held that speculation and conjecture are never 

enough to carry a First Amendment burden, Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 392 (2000), when 

it comes to determining the constitutionality of campaign contribution limits, lower courts routinely rely 

on little else. Even worse, however, lower courts have 

consistently ignored the growing and unrebutted body 

of scholarly literature – summarized below – showing 

that contribution limits have no meaningful effect on 

public trust in government or perceptions of corruption. 

 This cavalier attitude towards social-science evidence is an unfortunate symptom of this Court’s intermediate scrutiny jurisprudence, which – as discussed 

in Section I – has created a host of conflicting and indeterminate standards. As a result, whether a First 

Amendment litigant will have his case decided on the 

basis of meaningful evidence turns largely on the judge 

before which he finds himself. This, in turn, has resulted in courts reaching conflicting rulings when 

faced with similar, or even identical, facts. 
3 

 This Court should grant the petition and use this 

case to send a message to lower courts that “exacting 

scrutiny” – no less than any other form of intermediate 

scrutiny – is a rigorous level of review that demands 

the government produce actual evidence to justify restrictions on core First Amendment activity. 

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

REASONS FOR GRANTING THE PETITION 

I. Federal Courts Are Consistently Relying 

on Anecdotal or Distorted Evidence – or No 

Evidence at All – in Resolving CampaignFinance Cases. 

 This Court has long held that reducing the appearance or actuality of quid pro quo corruption is 

the only government interest sufficiently strong to 

justify restrictions on campaign financing. But advocates of campaign-finance restrictions have rarely 

felt compelled to marshal evidence demonstrating that 

campaign-finance laws improve public perceptions of 

government corruption, in part because federal courts 

have to date been content with relying on anecdote or 

simply faith that such a link exists. This is problematic 

for multiple reasons. First, it conflicts with this Court’s 

repeated statements that “mere conjecture” is never 

adequate to carry a First Amendment burden.2

 Second, 

2 Nixon, 528 U.S. at 392; see also Edenfield v. Fane, 507 U.S. 

761, 770-71 (1993) (holding that, even in the commercial-speech 

context, “mere speculation or conjecture” are insufficient to carry 

a First Amendment burden). 
4 

it leads to inconsistent decisions among courts reviewing campaign-finance laws, because anecdotes supporting any position are easy to find. Finally, the common 

assumption that campaign-finance laws improve public perceptions of corruption conflicts with the most 

thorough research on the topic, which establishes that 

no such link exists. 

 Actual social-science evidence on the effects of 

campaign contribution limits stands in stark contrast 

to the picture painted by defenders of such limits. In 

fact, the effects of campaign contribution restrictions 

on perceptions of government – specifically, measures 

of “political efficacy” and trust – are negligible.3 Systematic analysis of statistical evidence does not establish that perceptions of government are meaningfully 

improved by stricter campaign-finance laws. 

 The work of Professors David Primo and Jeffrey 

Milyo is particularly instructive. Professors Primo and 

Milyo studied the effects of state campaign-finance 

laws on three public-opinion questions related to “political efficacy”, i.e., the belief that an individual can 

influence the political process. See David M. Primo & 

Jeffrey Milyo, Campaign Finance Laws and Political 

Efficacy: Evidence from the States, 5 Election L.J. 23 

(2006) (hereinafter, “Campaign Finance Laws”). Their 

3

 In the political science literature, trust and political efficacy are distinct but related concepts. Trust typically relates to 

faith in the government while efficacy relates to a belief that one 

can influence the political process. See Jack Citrin, Comment: The 

Political Relevance of Trust in Government, 68 Am. Pol. Sci. Rev.

973 (1974); Angus Campbell et al., The Voter Decides (1954). 
5 

analysis focused on three aspects of survey respondents’ 

feelings of efficacy: whether people like the survey respondents have a say about what the government does; 

whether public officials care what people like the 

survey respondents think; and whether politics is too 

complicated for people like the survey respondents to 

understand.4 Primo and Milyo studied whether responses to these questions were influenced by the presence or absence of four types of state campaign-finance 

regulations: disclosure requirements; limits on organizational (including corporate) contributions; limits on 

individual contributions; and public financing of elections. Their article was the first scholarship to use 

state campaign-finance laws to study the relationship 

between campaign-finance regimes and perceptions of 

government. 

 Primo and Milyo’s research revealed that “[o]verall, no state campaign finance laws appear to have a 

substantively large impact on the public’s perceptions 

of government.” Campaign Finance Laws, 5 Election 

L.J. at 26. And these findings are consistent with Primo 

and Milyo’s other findings on the effect of such limits 

on the related concept of trust in government. Id. at 37. 

And additional recent research by Milyo shows that 

state limits on contributions have a negligible impact 

4

 These questions are part of a biennial survey of the American electorate, the American National Election Studies. See http:// 

www.electionstudies.org (last visited April 11, 2018). 
6 

on direct measures of public trust in state government.5

 These findings are not an outlier. The overwhelming majority of empirical studies have found virtually 

no relationship between trust in government and political contributions and spending. For example, as 

shown in Figure 1, below at page 8, a 2003 study 

demonstrated that the sharp decline in the public trust 

of government in the 1960s and 1970s preceded the 

significant increase in congressional campaign spending that began in the late 1970s. See David M. Primo, 

Campaign Contributions, the Appearance of Corruption, and Trust in Government, in Inside the Campaign 

Finance Battle: Court Testimony on the New Reforms, 

285, 290 (A. Corrado et al. eds., 2003). Moreover, this 

same study found virtually no relationship between 

5

 A working paper by Dr. Milyo expands upon the methodology used by Primo and Milyo in Campaign Finance Laws. Dr. 

Milyo’s new work pools the results of several national surveys 

of voter perceptions of state government. The findings of this 

new research are consistent with the findings in Campaign Finance Laws. See Jeff Milyo, Do State Campaign Finance Reforms 

Increase Trust and Confidence in State Government? (March 

2016) (unpublished paper), available at http://web.missouri.edu/ 

~milyoj/files/CFR%20and%20trust%20in%20state%20government_ 

v8.pdf. A related working paper discusses the absence of systematic statistical evidence that state campaign finance laws reduce 

political corruption in the states. See Adriana Cordis & Jeff 

Milyo, Do State Campaign Finance Reforms Reduce Public Corruption?, Mercatus Center Working Paper 13-09 (April 2013), available at http://mercatus.org/sites/default/files/Milyo_CampaignFinance 

Reforms_v2.pdf. 
7 

campaign spending and trust in government during 

the period after 1980. Id. 

 Indeed, as shown in Figure 2, below at page 9, this 

study discovered that trust in government actually increased at the same time that political parties were becoming more dependent upon “soft money” – 

contributions to political parties that, to a large extent, 

came from corporations. Id. 

 A 2004 study confirmed, as shown in Figure 3, below at page 10, that, even as “soft money” contributions 

increased in the 1990s, public perceptions of government as corrupt were declining. See Nathaniel Persily 

& Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004). This 

study concluded that “trends in general attitudes of 

corruption seem unrelated to anything happening in 

the campaign finance system (e.g., a rise in contributions or the introduction of a particular reform).” Id. at 

122. Instead, the study explained that the public’s perception of corruption rises and falls with the popularity 

of the incumbent president, declining during popular 

wars and economic prosperity while rising during 

times of recession. Id. at 121. 

 
 8 

Figure 1: The Decline in the Public’s Trust in Government Preceded a Spike in CongressCampaign Spending
 9 

Figure 2: As the Political Parties Became More Dependent on Soft Money, Trust in Goment Increased
 10 

Figure 3: As Soft Money Increased in the 1990s, Perceptions of Corruption Declined 
11 

One would have no notion of this substantial 

body of academic research from reading the decision 

below, however. Instead, the closest the en banc court 

comes to examining the anti-corruption effect of the 

challenged per-election contribution limits is to speculate that “Congress could conceivably regard a onetime contribution of $5,200 in the general (or primary) 

election alone to present a greater risk of apparent or 

actual corruption than two distinct contributions of 

$2,600 in each of the primary and general elections.” 

Pet. App. 24. But, as demonstrated above, even if Congress had believed that – and there is no reason to assume it did – that belief would lack any grounding in 

evidence. This Court should therefore grant certiorari 

to make clear that Americans’ First Amendment rights 

are too important to be abrogated on the basis of such 

idle speculation. 

II. The Decision Below Highlights Widespread 

Problems with This Court’s IntermediateScrutiny Jurisprudence. 

 That the court below ignored social-science evidence 

in upholding the per-election limits is, unfortunately, 

all too typical. Lower courts are increasingly confused 

about the role that evidence plays under intermediate 

scrutiny – a trend that is largely attributable to this 

Court’s intermediate-scrutiny jurisprudence, which is 

hardly a model of clarity. Since the late 1940s, this 

Court has articulated over a half-dozen distinct areas 

of First Amendment doctrine that are subject to various forms of intermediate scrutiny. See McCutcheon v. 
12 

FEC, 134 S. Ct. 1434 (2014) (campaign-contribution 

limits); Citizens United v. FEC, 558 U.S. 310 (2010) 

(campaign-finance disclosure); City of Los Angeles v. 

Alameda Books, Inc., 535 U.S. 425 (2002) (zoning adultoriented businesses); Madsen v. Women’s Health Ctr., 

512 U.S. 753 (1994) (content-neutral injunctions); Turner 

Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (regulation 

of mass media); Cent. Hudson Gas & Elec. Corp. v. Pub. 

Serv. Comm’n, 447 U.S. 557 (1980) (regulation of commercial speech); Red Lion Broad. Co. v. FCC, 395 U.S. 

367 (1969) (regulation of broadcast communication);

United States v. O’Brien, 391 U.S. 367 (1968) (contentneutral regulations that impose an incidental burden 

on expressive conduct); Kovacs v. Cooper, 336 U.S. 77 

(1949) (time, place, and manner regulations). 

 This phenomenon began with this Court’s time, 

place, and manner cases, which hold that certain regulations of the non-communicative elements of speech 

– such as its volume or the location in which it occurs 

– are subject to a more lenient standard of review than 

regulations that are aimed at (or triggered by) speech 

with a certain content. See Ashutosh Bhagwat, The 

Test That Ate Everything: Intermediate Scrutiny in 

First Amendment Jurisprudence, 2007 U. Ill. L. Rev. 

783, 788-91 (2007) (describing time, place, and manner 

regulations as “[t]he first strand of free speech cases 

that eventually emerged as intermediate scrutiny”); 

see also Holder v. Humanitarian Law Project, 561 U.S. 

1, 27-28 (2010) (discussing the distinction between 

laws aimed at non-communicative conduct, which receive intermediate scrutiny if they impose incidental 
13 

burdens on speech, and laws that are “trigger[ed]” by 

speech, which receive strict scrutiny). Over time, however, the scope of intermediate scrutiny has grown to 

the point where it is increasingly seen as “some kind of 

default standard.” Madsen, 512 U.S. at 792 (Scalia, J., 

concurring in the judgment in part and dissenting in 

part). 

 The result of this growth is an ad hoc, patchwork 

body of law that has no basis in the uncompromising 

text of the First Amendment itself. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 532 (2009) (Thomas, 

J., concurring) (observing that this Court’s decision in 

Red Lion Broad. Co., 395 U.S. 367, and FCC v. Pacifica 

Found., 438 U.S. 726 (1978), adopted “a legal rule that 

lacks any textual basis in the Constitution”). But besides conflicting with the terms of the First Amendment, the growth of intermediate scrutiny has also 

harmed speakers and made matters unnecessarily difficult for the courts that are charged with enforcing 

those speakers’ rights. 

 With regard to speakers, it is increasingly the 

case that speech of little social value is given the 

full protection of strict scrutiny, while speech of high 

social value is given only the protection of intermediate scrutiny. Thus, burdens on wholly unpersuasive 

speech like animal “crush” videos, lies about having received military honors, or the offensive rantings of the 

Westboro Baptist Church enjoy substantially higher 

protection than commercial or even political speech. 

Compare United States v. Stevens, 559 U.S. 460 (2010) 

(applying strict scrutiny to prosecution for distributing 
14 

dog-fighting videos), United States v. Alvarez, 132 S. Ct. 

2537 (2012) (same, violating Stolen Valor Act), and

Snyder v. Phelps, 131 S. Ct. 1207 (2011) (same, civil 

liability for emotional distress caused by militaryfuneral protests), with Cent. Hudson, 447 U.S. 557 

(1980) (applying intermediate scrutiny to restrictions 

on commercial speech) and Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377 (2000) (same, restrictions on political contributions). 

 This approach turns the First Amendment on its 

head – it cannot be the case that speech with the greatest ability to inform or persuade the public should be 

entitled to the least protection. See Sorrell v. IMS 

Health Inc., 131 S. Ct. 2653, 2671 (2011) (“That the 

State finds expression too persuasive does not permit 

it to quiet the speech or to burden its messengers.”). 

Indeed, one would expect that the drafters of the First 

Amendment held precisely the opposite view: that 

speech that can change listeners’ minds or move them 

to action is the sort of speech that is most likely to be 

targeted for regulation, and therefore the most deserving of robust judicial protection. 

 To make matters worse, the multiplicity of intermediate scrutiny standards that this Court has devised provide little guidance to the lower courts whose 

job it is to provide that protection. These standards 

are often phrased in similar, but not identical terms, 

which makes it difficult to tell whether decisions under 

one form of intermediate scrutiny have any bearing 

on other areas of intermediate scrutiny. Compare, 

e.g., Citizens United, 558 U.S. at 366-67 (holding that 
15 

campaign-finance disclosure laws must bear a “substantial relation” to a “sufficiently important” government interest) with Ward v. Rock Against Racism, 491 

U.S. 781, 791 (1989) (holding that time, place, and manner restrictions must be “narrowly tailored to serve a 

significant governmental interest”), Cent. Hudson, 447 

U.S. at 566 (holding that a restriction on commercial 

speech must not be “more extensive than is necessary 

to serve [a substantial government] interest”), and

O’Brien, 391 U.S. at 377 (holding that the incidental 

burdens of content-neutral regulations of conduct must 

be “no greater than is essential to the furtherance of 

[an important or substantial government] interest”). 

The distinctions between these standards are, at times, 

so ill-defined that even members of this Court have expressed exasperation in trying to untangle them. See

Madsen, 512 U.S. at 791 (Scalia, J., concurring in the 

judgment in part and dissenting in part) (“The difference between [the standard used by the majority for 

evaluating content-neutral injunctions] and intermediate scrutiny [of the time, place, and manner variety] 

. . . is frankly too subtle for me to describe. . . .”). 

 These conflicting standards have led, inevitably, to 

conflicting outcomes, most notably regarding the amount 

of evidence necessary to uphold a challenged law. 

While this Court has repeatedly stated that evidence 

is a requirement in all First Amendment cases, there 

are certainly areas where this Court seems to take that 

requirement more or less seriously. Compare, e.g., Edenfield v. Fane, 507 U.S. 761, 771 (1993) (striking down 

prohibition on direct solicitation by CPAs because an 
16 

affidavit that “contain[ed] nothing more than a series 

of conclusory statements” about the effect of direct solicitation was insufficient evidence under intermediate 

scrutiny), with Shrink Mo. Gov’t PAC, 528 U.S. at 393 

(upholding state campaign contribution limits and citing, as the principal evidence in support of those limits, 

an affidavit from a state senator containing the bare 

assertion that “large contributions have ‘the real potential to buy votes’ ”). 

 As a result of both this confusion and the flexibility of the various intermediate-scrutiny standards, it 

is easy to find cases in which lower federal courts have 

reached opposite conclusions on essentially identical 

facts. Compare, e.g., Sampson v. Buescher, 625 F.3d 

1247 (10th Cir. 2010) (striking down PAC requirements for grassroots ballot-issue advocates under intermediate scrutiny), with Worley v. Fla. Sec’y of State, 

717 F.3d 1238 (11th Cir. 2013) (upholding materially 

identical restrictions under materially identical facts); 

compare also Green Party of Conn. v. Garfield, 616 F.3d 

189 (2d Cir. 2010) (striking down prohibition on political contributions from lobbyists), with Preston v. Leake, 

660 F.3d 726 (4th Cir. 2011) (upholding materially 

identical prohibition). And this division exists not only 

between circuits, but within them; in one recent en 

banc ruling, the United States Court of Appeals for the 

Sixth Circuit split 8-7 over whether a conclusory affidavit and “common sense” were sufficient evidence to 

satisfy intermediate scrutiny under Central Hudson. 

Compare Pagan v. Fruchey, 492 F.3d 766, 778 (6th Cir. 

2007) (en banc) (holding that municipality had an 
17 

obligation “to provide something in support of its regulation,” and that the court was not “free to hold that 

obligation has been discharged based on principles of 

common sense or obviousness”), with id. at 779 (Rogers, 

J., dissenting) (stating that “[t]o require a study, or testimony, or an affidavit, to demonstrate the obvious is 

to turn law into formalistic legalism”). 

 These inconsistent outcomes would be bad enough 

if speakers could be guaranteed that they were merely 

the result of confusion about the proper application of 

this Court’s intermediate-scrutiny jurisprudence. But 

the very indeterminacy of intermediate scrutiny provides ample room for lower courts to decide cases based 

on their own values, rather than a genuine attempt to 

discern the meaning of this Court’s precedent. See 

Craig v. Boren, 429 U.S. 190, 221 (1976) (Rehnquist, J., 

dissenting) (arguing that the elements of intermediate 

scrutiny “are so diaphanous and elastic as to invite 

subjective judicial preferences or prejudices relating to 

particular types of legislation, masquerading as judgments whether such legislation is directed at ‘important’ objectives or, whether the relationship to those 

objectives is ‘substantial’ enough”). The result is a “jurisprudence of doubt” that is particularly toxic “in the 

case of speech, which is especially vulnerable to uncertainties in the law.” Minority Television Project, Inc. v. 

FCC, 736 F.3d 1192, 1223 (9th Cir. 2013) (Kozinski, 

C.J., dissenting). 

 This is an ideal case in which this Court can begin 

to reverse this dangerous trend. The legal issues are 

clearly presented and the factual record is undisputed. 
18 

Moreover, this case provides multiple avenues for clarifying this Court’s intermediate-scrutiny jurisprudence, either by reversing this Court’s earlier decisions 

holding that limits on campaign contributions are subject to only intermediate scrutiny or by clarifying the 

role that evidence plays under intermediate scrutiny. 

For these reasons, the petition for certiorari should be 

granted. See Sup. Ct. R. 10(c). 

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

CONCLUSION 

 For the reasons stated above, the petition for certiorari should be granted. 

Respectfully submitted, 

INSTITUTE FOR JUSTICE

PAUL M. SHERMAN* 

901 North Glebe Road, 

 Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

*Counsel of Record 

Counsel for Amicus Curiae 

 Institute for Justice