## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-2351

_____________ Shrink Missouri Government PAC, a * political action committee; Zev David * Fredman, *
* Appellants, *
*
v. *
* Richard Adams, in his official capacity * as a Member of the Missouri Ethics * Commission; Patricia Flood, in her * official capacity as a Member of the * Missouri Ethics Commission; Robert * Gardner, in his official capacity as a * Member of the Missouri Ethics * Appeal from the United States Commission; Ervin Harder, in his * District Court for the official capacity as a Member of the * Eastern District of Missouri Missouri Ethics Commission; John * Howald, in his official capacity as * Chairman of the Missouri Ethics * Commission; Elaine Spielbusch, in her * official capacity as a Member of the * Missouri Ethics Commission; * Jeremiah W. Nixon, in his official * capacity as Missouri Attorney General; * Robert P. McCullough, in his * official capacity as St. Louis County * Prosecuting Attorney, *
* Appellees, *
*Although counsel for the prosecuting attorney spells the name of his clien t 1 differently , we use the spelling as it appeared in the original complaint and as it stil l appears in the caption of this case.
-2- Joan Bray, *
* Intervenor on Appeal, *
*

-------------------- *
* Common Cause, *
* Amicus Curiae. *

_____________ Submitted: August 21, 1998 Filed: November 30, 1998

_____________ Before BOWMAN, Chief Judge, ROSS and JOHN R. GIBSON, Circuit Judges.

_____________ BOWMAN, Chief Judge.

Shrink Missouri Government PAC and Zev David Fredman (collectively, SMG) appeal from the decision of the Distr ict Court granting summary judgment to members of the Missouri Ethics Commission, Missouri Attorney General Jay Nixon, and St

. Louis County Prosecuting Attorney Robert P. McCullough (collectively, the State) on 1 SMG's challenge to certain provisions of Missouri's campaign f inance law. We reverse and remand.We did say in Carver that "we generally accept the limits established by th e 2 legislature." 72 F.3d at 641. But even if that comment could be construed to mean that the Court believed the SB650 limits to be co nstitutional (an excessively broad reading, we think), it is obiter dictum and is not binding on the Court in this case.

-3- I.

In July 1 994, the Missouri legislature, by enacting Senate Bill 650 (SB650) , ado pted certain amendments to the state campaign finance law that, among othe r things, restrict the amount of campaign contributions that persons can make t o candidates for public office. The limits were to become effective on January 1, 1995. In No vember 1994, the electorate approved Proposition A, a ballot initiative tha t imposed e ven more restrictive contribution limits than those contained in SB650

. Proposition A became effective immediate ly upon voter approval. In December 1995, th is Court held that the Proposition A limits on campaign contributions violated th e First Amendment. See Carver v. Nixon , 72 F.3d 633 (8th Cir. 1995), cert. denied , 518 U.S. 1033 (1996). At that time, the limits of SB650 became effective. 2

Un der the provisions of SB650 challenged here, "the amount of contribution s made by or accepted from any person other than the candi date in any one election shall not exceed" $1,075 to candidate s for governor, lieutenant governor, secretary of state, state treasurer, state auditor, or attorney general, or for any office where the population of the electoral district is 25 0,000 or more; $525 to candidates for state senator, or for any office where the population of the electoral district is 100,000 or more; and $275 to candidates for state representative, or for any office where the population of th e el ectoral district is less than 100,000. Mo. Rev. Stat. § 130.032.1 (Supp. 1997) (a s amended early in 1998 by the Missouri Ethics Commission to account for inflation, see Mo. Rev. Stat. § 130.032.2 (Supp. 1997)).-4-

SMG, a political action committee organized and doing business in Missouri, and Fredman, a resident of and registered voter in Missouri and an unsuccessful candidate for the Rep ublican party's nomination for state auditor this election cycle, filed sui t claiming t hat the limits violate their First Amendment rights of free speech an d association. The parties fil ed cross motions for summary judgment; the District Court denied SMG's motions for summary judgment and fo r injunctive relief, and granted the State's summary judgment motion. SMG filed a notice of appeal, and on July 27, 1998,

we gr anted SMG's motion for an injunction against enforcement of the campaig n contribution limits of SB650 pending appeal.

II.
We first address a question initially presented in the last few pages of the State's brief. The State claims that SMG and Fredman lack standing to challenge thes e contribution limits. We take up the question as our first matter of business, because we lack jurisdiction to entertain the appeal if both SMG and Fredman are without standing.

The State asserts that the injuries alleged are "contrived," "conjectural," an d "hypotheti cal." Brief of Appellees at 49, 50. We disagree. The State cannot make a persuasive argument that SMG and Fredman are not and have not been harmed by the lim its imposed on campaign contributions by SB650. See Shrink Mo. Gov't PAC v

. Adams , No. 98-2351, Or der at 3-4 (8th Cir. July 27, 1998) (order granting motion for injunc tionpending appeal). The only question, as we see it, is whether Fredma n continues to have standing despite his loss as a candidate for statewide office in th e August primary election. We hol d that he does, as the State declined at oral argument to assure theCourt that no recourse would be taken against those who, like Fredman, accepted campaign contributions in excess of the SB650 limits after July 27, 1998 (the dat e we ordered an injunction pending appeal), should the summary judgment b e affirmed.-5-

We hold that SMG and Fredman have standing to continu e their challenge to the provisions of SB650 here at issue.

III.

We proc eed now to the merits, reviewing the decision to grant summar y judgment de novo. The questi on before us is straightforward: do the SB650 limits on political campaign contributions vio late SMG's and Fredman's First Amendment rights of free speech and association?

The State insists, as it did in Carver , that campaign contribution limits are subject only to intermediate scrutiny, not the "rigorous standard of review" employed by th e Court in Buckley v. Valeo , 424 U.S. 1, 29 (1976) (per curiam). But as we noted i n Carver , the Supreme Court "articulated and applied a strict scrutiny standard of review" to the feder al contribution limits that were under challenge in Buckley , and "has no t ruled that anything other than strict scrutiny applies in cases involving contributio n limits." Carver , 72 F.3d at 637; see also Citizens Against Rent Control/Coalition for Fa ir Housing v. City of Berkeley, Cal. , 454 U.S. 290, 294 (1981) ("[R]egulation o f First Amendment rights is always subject to exacting judicial review."); Russell v

. Burris , 146 F.3d 563, 567 (8th Cir.), cert. denied , 67 U.S.L.W. 3332 (U.S. Nov. 16, 1998) (Nos . 98-397, 98-399). The State must demonstrate, therefore, that it has a compelling interest and that the contribution limits at i ssue are narrowly drawn to serve that inter est. See Buckley , 424 U.S. at 25; Russell , 146 F.3d at 567; Carver , 72 F.3d at 638.

A.

The State contends that its compelling interest is in avoiding the corruption o r the percept

ion of corruption brought about when candidates for elective office accept large campaign contributions. The State further posits, citing Buckley , that corruptionOn the subject of t he State's burden to prove its compelling interest, this Court 3 in Ca rver quoted (with some alterations by the Carver Court) the following passag e from United States v. National Treasur y Employees Union , 513 U.S. 454, 475 (1995), which in t urn quoted Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622, 66 4 (1994) (plurality opinion of Kennedy, J.): "'When t he Government defends a regulation
on speech . . . it must do more than simply "posit the existence of the disease sought to be cured." . . . It must demonstrate that the recited harms are real, . . . and that the regulation will in fact alleviate these harms in a direct and material way.'"
-6- and the perception thereof are inherent in political campai gns where large contributions

are made, and that it is unnecessary for the State to demonstrate that these are actual prob lems in Missouri's electoral system. Recent precedent from this Court is to th e contrary. In both Carver

and Russell , we were not satisfied with the mere contention that the states have an interest (an indisputably compelling interest, see D ay v. Holahan , 34 F.3d 1356, 1365 (8th Cir. 1994), cert. denied , 513 U.S. 1 127 (1995)) in maintaining the inte grity of their elections. We required some demonstrable evidence that ther e
were genuine problems that resulted from contributions in amounts greater than th e limits in place. See Russell , 146 F.3d at 568 ("The defendants must prove first tha t there is real or perceived undue influence or corruption attributable to large politica l contributions

. . . .") (emphasis added); id. at 569 (noting that none of the defendants "provided any credible evidence" of actual corruption, nor had they proved a perception of corruption); Carver , 72 F.3d at 638. 3

In reaching its concl usions concerning the constitutionality of federal campaign contribution restrictions, the Bu ckley Court noted the perfidy that had been uncovered in federal campaign financing in 1972. See 424 U.S. at 27 n.28. But we are unwilling to e xtrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from "large" campaign contributi ons, without some evidence that such problems really ex ist. See Russell , 146 F.3d at 569; Carver , 72 F.3d at 638. We will not infer that state candidates for public office are corrupt or that they appear corrupt from the problems that resulted from undeniably large contributions made to-7-

federal campaigns over twenty-five years ago. The State therefore must prove tha t Missouri has a real problem with corruption or a perception thereof as a direct result of large campaign contributions.

For its evidence, the State relies on the affidavit of the state senator who co

ch aired the Interim Joint Committee on Campaign Finance Reform when th e cont ributionlimits were enacted. That senator pointed to no evidence that "large " campaign contributions were being made in the days before limits were in place, much less that they resulted in real corruption or the perception thereof. See Buckley , 424 U.S. at 28 (noting that "the problem of large campaign contributions [is] the narro w aspect of political association where the actuality and potential for corrup tion have been identified") (emphasis added). The senator did not state that corruption then existe d in the system, on ly that he and his colleagues believed there was the "real potential to buy votes" if the limit s were not enacted, and that contributions greater than the limits "have the appearance of buying votes." Affidavit of Senator Wayne Goode at ¶ 9. His stateme nt that "[t]he greater the contribution, the greater potential there is for th e appearance of and the actual buying of votes," id. , is concl usory and self-serving, given the senator's vested in terest in having the courts sustain the law that emerged from his committee. There is no w ay for us to tell whether this single legislator's perception of corruptio n

is the "public perception," whether it is objectively "reasonable," an d whether it "derived from the magnitude of . . . contributions" that historically have been made to candidates running for public office in Missouri. Russell , 146 F.3d at 569.

As a matter of law, the State has failed to come forward with evidence to prove

a comp elling interest that would be served by the restrictions SB650 imposes o n campaig n contributions. In fact, the State has been unable to adduce sufficien t evid ence even to show that there exists a genuine issue of material fact regarding it s alleg ed interest. Therefore, the limits here cannot withstand constitutional challenge.SMG cont ends that $1,075 in 1976 dollars is the equivalent of just $378 i n 4 purchasing power today. The State argues that SMG's use of the Consumer P rice Index (CPI) to calculate the effects of inflation on dollars spent for campaign contributions is inappropriate. Nevertheless, the State has not come forward with any other measure itdeems mor e appropriate. In fact, the subsection of SB650 that provides for th e biennial adjustment o f the contribution limits to account for inflation relies on the CPI for the calculation. See Mo. Rev. Stat. § 130.032.2 (Supp. 1997).
-8- B.

Even if the State had come forward with evidence sufficient to show that it had a compelling interest in enacting and enforcing campaign contribution limits, it cannot demons trate that the SB650 limits on the amount of campaign contributions ar e narrowly tailored to serve t hat interest. That is, we can say as a matter of law that the limits at issue here are so small that they r un afoul of the Constitution by unnecessarily restricting protected First Amendment freedoms.

After inf

lation, limits of $1,075, $525, and $275 cannot compare with th e $1 ,000 limit approved in Buckley twenty-two years ago. We previously hav e 4 acknowledged that the Court in Buckley did not declare that limits of less than $1,000

on c ontributions are unconstitutional per se, but we also recognize that the $1,00 0 figure provides us with something of a benchmark. See Day , 34 F.3d at 1366. I n today's dollars, the SB650 limits appear likely to "have a severe impact on politica l dialogue" by preventing many candidates for public office "from amassing the resources
nece ssary for effective advocacy." Buckley , 424 U.S. at 21. Even if the State ha d demonstrated a

compelling interest, the limits set by SB650, absent the State's having proven the actual necessity for such a heavy-handed restriction of protec ted speech, can only be regarded as "too low to allow meaningful participation in protected politica l speech and association, and thus . . . not narrowly tailored to serve" the allege d interest. Day , 34 F.3d at 1366.-9-

In the circumstances presented here, we do not believe that we run the risk o f attempting to "fine tun[e]" the work of the Missouri legislature, or that we otherwise

are exercising authority that is not ours in order to hold that these limits are overl y restrictive of freedoms protected by the First Amendment. Buckley , 424 U.S. at 30

. We so conclude because the difference between these limits of $1,075, $525, and $275, and la rger dollar limits that might be constitutionally sound (that is, narrowly tailored to serve a compelling state interest), are not "distinctions in degree" but "difference s in kind." Id. But see Kentucky Right to Life, Inc. v. Terry , 108 F.3d 637, 648 (6t h Cir.) (holding that "$1,000 limitation on direct contributions in connection with local and state elections in Kentucky is not different in kind from the $1,000 limitation o n dir ectcontributions in connection with federal elections upheld in Buckley "), cert

. den ied , 118 S. Ct. 162 (1997). Although, like the Court in Buckley , we are no t prepared to state definitively what difference would be one of "degree" as compared with one of "kind," we can say these limits are overly restrictive as a matter of law. We ag ainremind the State that it has the burden of showing that any limits it places o n campaign contributions are narrowly tail ored to serve the State's compelling interest in addressing proven "real or perceived undue influence or corruption attributable to large political contributions." Russell , 146 F.3d at 568. Onc e those who would regulate and limit constitutionally protected pol itical speech satisfy their heavy burden of proof, the problem of judicial line-drawing can be expected largely to disappear.

IV.

In sum, the campaign contribution limits at issue in this case, even with th e biennial adjustments for inflation that SB650 provides, violate SMG's and Fredman's First Amendment rights of free speech and association. The judgment of the District Court is reversed and the case is remanded with instructions to enter summar y judgment for SMG and Fredman.-10-

ROSS, Circuit Judge, concurring.

I concur in the decision to rever se the judgment of the district court and remand for entry of summary judgment for SMG and Fredman. I do so because I agree with part III A of the majo rity opinion holding that the State failed to satisfy its evidentiary burden.

However, for the reasons stated by Judge Gibson, I do not join in part III B of Judge Bowman's o pinion finding that the contribution limits are different in kind from those approved in Buckley v. Valeo , 424 U.S. 1 (1976).
JOHN R. GIBSON, Circuit Judge, dissenting.
I respectfully dissent.

The Court to day departs from the teaching of Buckley v. Valeo , 424 U.S. 1 (1 976), and gives far too expansive a reading to the recent decisions of this Court i n Carver v. Nixon , 72 F.3d 633 (8th Cir. 1995), an d Russell v. Burris , 146 F.3d 563 (8th Cir. 1998) . Upon a record more slender than the one before us, Buckley uphel d contribution limits of $1,000 per election for all federal offices, whil e Missouri’s statute provides a $1,075 limit for statewide offices. Mo. Rev. Stat. § 130.032 (Supp. 1997). Because I cannot distinguish Buckley from the present case, I would uphold th e contribution limits at issue.

I.

In Carver and Russell , we faced graduated annual contribution limits betwee n $300 f or statewide offices and $100 for other offices, and we held that both statute s violated the First Amendment. Carver , 72 F.3d at 641-44; Russell , 146 F.3d at 569-71.The Arkansas statutes in Russell had a $100 limit for all state offices other than 1 the enumer ated offices which were elected statewide. Russell , 146 F.3d at 565. The provisions at issue in Carver contained limitations of $100 per election cycle fo r candidat es in districts with fewer than 100,000 residents; $200 for candidates i n districts of 100,000 o r more residents; and $300 for statewide candidates. Carver , 72 F.3d at 635. The legislation at issue imposes a limit of $1,075 per election, but a $2,150 limit 2 pe r “election cycle.” An “election cycle” is the “period of time from [the] genera l election for an office until the next general election for the same office.” Mo. Rev

. Stat. § 130.011 (Supp. 1995). It is of interest that the average household income i n Missouri is about $31,000 per year.
-11- Both statutes were adopted by initiative petitions. We contrasted these limitation s 5 with those at issue in Buckley -- $1,000 per election or $2,0 00 per election cycle -- and found them “different in kind.” C arver , 72 F.3d at 644; Russell , 146 F.3d at 571. For example, we observed that the limitations challenged in Carver were the lowes t contribution limits in the nation and that the State had presented only meager evidence to justi fy these limitations. 72 F.3d at 641-42. The holdings of Carver and Russell , that stat ewide limits of $300 per election cycle “differ in kind” from the limit i n Buckley of $2,000, point compellingly to a different conclusion in this case.

It is of interest

that Carver

contrasted Proposition A -- with limits ranging from $100 to $300 -- to the legislation n ow before us, with limits then ranging from $250 to $1,000. Id. at 642-43. In view of the Attorney General’s opinion, the dollar limits in Proposition A w ere the more restrictive and therefore provided the relevant limitation on the plaintiffs’ contributions. Id. at 634-35. Carve r struck Proposition A’s limits but did not discuss the

propriety of the limits now before us. Nevertheless, in contrasting Proposition A’s limits with thos e enacted by the legislature, the similarity between the legislatively-enacted limits and those in Buckley was evident.

Less evident is how to distinguish Buckley from the present case. When w e compare the $1,075 contribution limit imposed by Senate Bill 650 for each election 2-12-

with the $1,000 upheld by Buckley , there is simply no difference in kind. The $1,075 limit applies to statewide races, just as Buckley ’s $1,000 limit applies to the Senate , a statew ide race, and the presidential elections. Buckley ’s reasoning would similarly upholdSenate Bill 650’s lower contribution limits in non-statewide elections. When

on e accounts for the lower number of voters in non-statewide electoral districts, th e limits at issue compare favorably with the $1,000 limit in Buckley , which applied t o statewide races as well as to elections for the U.S. House of Representatives. There

are nine Ho use districts in Missouri, and in the most recent statewide election, th e numberof vo tes cast in these districts averaged 235,094. Official Manual, State o f Missour i563-65 (1997). Meanwhile, Senate Bill 650 imposes a contribution limit of $525 upon rac es for state senators as well as to certain other elections in district s ranging from 100,000 to less than 250,000 in population. Mo. Rev. Stat. § 130.03 2 (Supp. 1997). There are thirty-five Senate districts in Missouri. Seventeen of thes e seats were contested in 1996, and an average of 59,254 people voted in each election. Official Manual, State of Missouri566-67 (1997). When the size of t he state senatorial distric ts is contrasted with federal congressional districts as well as the entire Stat e itself, there is plainly no “difference in k ind” between these legislative limits and those

c o untenanced by Buckley . Finally, the same must be said for the $275 limit for state House elections. In the last election, the number of votes cast in such di stricts averaged 12,325. Id. at 567-80. With thenumber of voters in such districts, I cannot conclude that the $275 limit “differs in kind” from those that Buckley upheld. As Buckle y observed, Con gress could have structured limits in a graduated fashion, but its failure to do so did not invalidate the legisla tion. Buckley , 424 U.S. at 30; Carver , 72 F.3d at 641. Buckley recognizes, then, that graduated limits such as Missouri’s are a n acceptable solution to the dangers posed by unlimited campaign contributions.

Carver , Ru ssell , and Part III B of Chief Judge Bowman’s opinion in this cas e discuss at length the effect of inflation upon the Buckley limits. Carv er , 72 F.3d at 641;SeeDistrict C ourt Memorandum and Order at 15-16, J. App. 191-92; see also 3 J. App. 43-52.
In a ll three cases, the limits at issue were patently “different in kind” from the 4 li mits in Buckley , with or without the aid of inflation. Carver and Russell struc k election cycle limits rang ing from $300 for statewide offices to $100 for other offices, while Daystruck a $100 limit. Carver , 72 F.3d at 641-44; Russell , 146 F.3d at 569-71; Day , 34 F.3d at 1366.
-13- Russell , 146 F.3d at 570-71. Yet Missouri’s statute expressly addresses the inflation problem, and the $1,000 limit initially enacted has now grown to $1,075. See Mo

. Rev. Stat. § 130.032.2 (Supp. 1997) (limits adjusted for inflation). Significantly, the campaignexpenditures in Missouri’s statewide elections have risen markedly sinc e Senate B ill 650’s enactment, and there is no basis for rejecting the district court’ s conclusion that candidates for office remain “able to amass impressive campaign war chests.” 3

Buckle y , of course, did not establish $1,000 as the constitutional floor fo r permissible contribution limitations; s ee Day v. Holahan , 34 F.3d 1356, 1366 (8th Cir. 1994). But even if it had, I would reject the argument in Part III B that inflation ha s dissipated the similarity between the limits in this case and those approved in Buckley

. Inf lation has not undermined Buckley ’s precedential weight or modified its holding

. The $1,000 limit upheld in Buckley remains and is the law today, even though we have used inflation to compare present contribution limitations with those upheld in 1976. See Carver , 72 F.3d at 641; Russell , 146 F.3d at 570-71; Day , 34 F.3d at 1366. 4 Despite ample opportunity to modify Buckl ey , the Supreme Court has never added the “inflation proviso” that Part III B relies upon. If Buckley ’s holdingmust wax and wane withinflation, as Part III B seems to argue, then the very statute that Buckley upheld woul d now be unconstitutional, for inflation alone would render the $1,000 limi t “different in kind” from when the Supreme Court upheld it. Whatever may be theIndeed, even with the aid of inflation, it does not follow that today’ s 5 contr ibutionlimits “differ in kind” from what the Supreme Court upheld in 1976

. Differing costs, whether higher or lower, of new communic ations media (fax machines, e-mail, and the Internet, as well as more traditional modes of political speech) an d modern fund-raising methods (the emergence of“soft money” is but one relevant postBuckley development) simply make comparison a morass of conjecture.
-14- pernicious effects of i nflation, I am certain that the First Amendment’s dictates do not depend upon the Consumer Price Index.
More importantly, even if it w ere proper to adjust Buckley for inflation, Part III B lacks a principled yardstick to assess the constitutionality of any contribution limit. Its measure of what “differs in kind” and what “differs in degree” from the Buckle y limits is standardless and lacks any explanation to support its bald conclusion that the limits at issue are “overly restrictive as a matter of law.” 5

II.

Puttin g to one side the facial similarity between the statute stricken today an d that u pheld in Buckley , the State has adequately justified the contribution limits a t iss ue. Buckley and our cases both teach that contribution limits are subject to “th e closest scrutiny.” Buc kley , 424 U.S. at 25; Carver , 72 F.3d at 636; Russell , 146 F.3d at 567. The State has the burden to demonstrate a compelling interest, which Buckley defined as limiting the reality or appearance of political corrup tion stemming from large financial c ontributions. 424 U.S. at 26. Both Carver and Russell found no direc t evidence of real or perceived undue influence. Carver , 72 F .3d at 642-43; Russell , 146 F.3d at 569-70. Accordingly, we struck the contribution limits in both cases.
The pres ent case is readily distinguishable from Carver and Russell . Although the Ho use and Senate in Missouri preserve no formal legislative history, the recor d hardly lack s evidence that the statute at issue limits the reality or perception of undueThe Court today attempts to minimize Senator Goode’s affidavit as th e 6 testi mony of a single legislator, but the affidavit contains the Senator’s description of the le gislature’s conclusions, which is precisely the support cited by Buckley when it upheld the c ontribution limits imposed by Congress. See 424 U.S. at 27, 28, 30. I t must again be emphasized that Goode’s observations are those of the co-chair of the join t legislative committee from which the limits at issue originated. To brand hi s affidavit as “self-serving, given the senator’s vested interest in h aving the courts sustain the l aw that emerged from his committee” not only rules upon the credibility of a witness on a summary judgment motion, but also gratuitously impugns the senator’ s des cription of the evidence before the Committee, the conclusions drawn by th e Committee, and his fellow legislators’ first-hand knowledge of what it costs to wage a campaign and the dangers presented by contributions above the limits enacted.
-15- influence and corruption. In summary judgment papers, the State pr esented an affidavit of Senator Wayne Goode. Goode served twenty-two years in the Missouri House and nine years in the Senate before he co-chaired the Joint Interim Co mmittee on Campaign Finance Reform that prepared Se nate Bill 650, now the statute before us. The senator stated that the Committee heard “a broad spectrum of opinions ... on the issue o f campaign contribution limits.” He described the committee discus sions of what it costs to run a campaign and the level at which contributions threaten to corrupt politica l officials and to erode public confiden ce in the electoral process. The committee heard testimony on the issue of balancing the need to run an effective campaign against the need to limit the potential for buying influence. Balancing the concerns, the committee reached the contribution limits of $250 to $1,000 by consensus. Goode and the other 6 members believ ed that contributions over those limits create both the appearance that contributors could purchase the votes of elected offi cials and the danger of actual votebuying. The most recent elections themselves suggest that the State has limited at least the appearance of corruption in the political process. Goode Affidavit, ¶ 11; J. App. 171. The limits prevent disproportionate funding of particular campaigns and curtailC arver and Russell involved only evidence of certain specific contributions , 7 wit hout evidence of their impact, as after-the-fact justifications for the initiativ e proposals at issue.
-16- the opportunities for buying political influence. Id. This evidence stands in stark contrast to the lack of evidence on these issues in Carver and Russell

. 7

Inaddition to the description in Senator Goode’s affidavit, what record i s
ava ilable to us reflects that the House and Senate in Missouri exerted considerabl e effort in reaching acco rd on the bill finally enacted. Two bills containing contribution limits were introduced in the Hou se, House Bills 1304 and 1523. Senate Bill 801 was introduced and passed in the Senate, and the House passed the House Committee’ s substitute for Senate Bill 650. A conference committee substitute for the Hous e Committee s ubstitute for Senate Bill 650 was ultimately adopted by the House an d Senate and signed by the Governor. This action in both legislative bodie s demonstrated the caref ul attention given to this legislation and the give-and-take before fina l enactment. We commented upon this process in Carver . 72 F.3d at 645 n.18.

Ca rver also recited the Supreme Court’s admonition that we “must accor d substantia ldeference to the predictive judgments of the legislature.” 72 F.3d at 64 4 (q uoting Turner Broadcasting System v. FCC , 512 U.S. 622, 665 (1994)). Turne r referred to the deferen ce owed to Congressional findings. In Carver , we left open the question whether s tate legislatures are due similar deference. Carver , 72 F.3d at 644. Al though Carver

rejected the State’s argument that we should accord such deference to a citizens’ initiative, the limitations now before us became law only after careful and informed deliberation by the legislature. The Court should not so lightly cast aside the legisl ature’s findings in favor of its own. It is hardly counterintuitive that larg e campaign contributions might corrupt politics and invite public cynici sm. The State has impos ed only modest restrictions upon political speech, and it need not justify the m with scientific precision.Although the need to limit the perception of political corruption by i tself justifies 8 the co ntribution limits at issue, today’s opinion takes note of what little evidence o f actual corrupt

ion was before the Buckley court: the “perfidy that had been uncovered in fe deral campaign financing in 1972.” See Buckley , 424 U.S. at 27 n.28. Ye t Buckley ’s passing reference to the 1972 election does not aid this Court’s opinion

. Buckley nowhere supports the particular scrutiny undertaken by the Court today

. -17- The Cour t’s rejection of the description of Senate Bill 650's legislativ e underpinnin gs is plainly at odds with Buckley . Accepting the argument that th e appearance of political corruption could justify the limitations then at issue, Buckle y stated:

Of almost equal concern as the danger of actual quid pro qu o arran gements is the impact of the appearance of corruption stemmin g from public awareness of the oppor tunities for abuse inherent in a regime of l arge individual financial contributions... Here, ... Congress coul d legitim ately conclude that the avoidance of the appearance of imprope r influence “i s also critical ... if confidence in the system of representative Government is not to be eroded to a disastrous extent.”
424 U.S. at 27 (quoting C.S.C. v. Letter Carriers , 413 U.S. 548, 565 (1973)). It is true that the State must do more than simply “posit the existence of the disease to be cured.” See Carver , 72 F.3d at 638 (citing United States v. National Treasury Employee s Union , 513 U.S. 454, 475 (1995) (quoting Turner Broadcasting System v. FCC , 512 U.S. 622, 664 (1994) (Kennedy, J., plurality))). The State, by the Goode affidavit, has demonstrated not only the dangers posed by unlimited campa ign contributions, but also the conclusions reached as to “alleviat[i ng] these harms in a direct and material way.” Id.

I cannot

reconcile the short shrift given the Goode affidavit by the Court today wit h the Supreme Court’s approach in Buckley , which cited no actual evidence tha t large contributions migh

t give rise to the appearance of political corruption and which deferred to what Congress could have reasonably conclu ded. See 424 U.S. at 27, 28, 8Cert ainly, it provides no suggestion that the Goode affidavit would fail to satisf y whatever evidentiary inquiry is required to support a legislative body’s conclusion that financial contributions have created or will create the appearance of corruption.
-18- 30 (Congress “could legitimately conclude” that avoiding the appearance of corruption is essential to maintaining confi dence in government; Congress “was surely entitled to conclude” that disclosure limitations alone would not adequately combat corruption and its appearance; Congre ss “was justified in concluding that the interest in safeguarding against the ap pearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.”).

Senate Bill 650 is premised upon just such reasonable legislative conclusions , as evidenced by Senator Goode’s affidavit. The Court to day rejects those conclusions, whichclosely resemble those recognized by Buckley when it upheld limitation s strikingly si milar to those now at issue. In rejecting the state’s evidence, the Cour t si desteps binding Supreme Court precedent and fails to provide meaningful guidance to those who might hope to craft campaign reform legislation that will survive thi s Court’s unprecedented scrutiny.

III.
It must also be noted that the Sixth Circuit has recently approved a Ke ntucky law with a contribution limit of $1 ,000 per election year. Kentucky Right to Life v. Terry , 108 F.3d 637 , 648 (6th Cir. 1997). The Court creates a conflict between the circuits, and in d oing so disregards the inescapable similarity between the legislation that i t strikes and that which the Supreme Court upheld.-19-

Per haps members of the Court quarrel not only with the contribution limits a t issue today, but with Buckley itself, as was made evident during oral argument. We are bound by Buckley unless and until the Supreme Court declares otherwise.

I wo uld affirm the summary judgment of the district court upholding th e contribution limits in Senate Bill 650.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.