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 client

1

differently, we use the spelling as it appeared in the original complaint and as it still

appears in the caption of this case.

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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 District 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 finance law. We reverse

and remand.
We did say in Carver that "we generally accept the limits established by the

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 constitutional (an excessively broad reading,

we think), it is obiter dictum and is not binding on the Court in this case.

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I.

In July 1994, the Missouri legislature, by enacting Senate Bill 650 (SB650),

adopted certain amendments to the state campaign finance law that, among other

things, restrict the amount of campaign contributions that persons can make to

candidates for public office. The limits were to become effective on January 1, 1995.

In November 1994, the electorate approved Proposition A, a ballot initiative that

imposed even more restrictive contribution limits than those contained in SB650.

Proposition A became effective immediately upon voter approval. In December 1995,

this Court held that the Proposition A limits on campaign contributions violated the

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

Under the provisions of SB650 challenged here, "the amount of contributions

made by or accepted from any person other than the candidate in any one election shall

not exceed" $1,075 to candidates 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 250,000 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 the

electoral district is less than 100,000. Mo. Rev. Stat. § 130.032.1 (Supp. 1997) (as

amended early in 1998 by the Missouri Ethics Commission to account for inflation, see

Mo. Rev. Stat. § 130.032.2 (Supp. 1997)).
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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 Republican party's nomination for state auditor this election cycle, filed suit

claiming that the limits violate their First Amendment rights of free speech and

association. The parties filed cross motions for summary judgment; the District Court

denied SMG's motions for summary judgment and for injunctive relief, and granted the

State's summary judgment motion. SMG filed a notice of appeal, and on July 27, 1998,

we granted SMG's motion for an injunction against enforcement of the campaign

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 these

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," and

"hypothetical." 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

limits imposed on campaign contributions by SB650. See Shrink Mo. Gov't PAC v.

Adams, No. 98-2351, Order at 3-4 (8th Cir. July 27, 1998) (order granting motion for

injunction pending appeal). The only question, as we see it, is whether Fredman

continues to have standing despite his loss as a candidate for statewide office in the

August primary election. We hold that he does, as the State declined at oral argument

to assure the Court 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

date we ordered an injunction pending appeal), should the summary judgment be

affirmed.
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We hold that SMG and Fredman have standing to continue their challenge to the

provisions of SB650 here at issue.

III.

We proceed now to the merits, reviewing the decision to grant summary

judgment de novo. The question before us is straightforward: do the SB650 limits on

political campaign contributions violate 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 the

Court in Buckley v. Valeo, 424 U.S. 1, 29 (1976) (per curiam). But as we noted in

Carver, the Supreme Court "articulated and applied a strict scrutiny standard of review"

to the federal contribution limits that were under challenge in Buckley, and "has not

ruled that anything other than strict scrutiny applies in cases involving contribution

limits." Carver, 72 F.3d at 637; see also Citizens Against Rent Control/Coalition for

Fair Housing v. City of Berkeley, Cal., 454 U.S. 290, 294 (1981) ("[R]egulation of

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 issue are narrowly drawn to serve

that interest. 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 or

the perception of corruption brought about when candidates for elective office accept

large campaign contributions. The State further posits, citing Buckley, that corruption
On the subject of the State's burden to prove its compelling interest, this Court 3

in Carver quoted (with some alterations by the Carver Court) the following passage

from United States v. National Treasury Employees Union, 513 U.S. 454, 475 (1995),

which in turn quoted Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664

(1994) (plurality opinion of Kennedy, J.): "'When the 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.'"

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and the perception thereof are inherent in political campaigns where large contributions

are made, and that it is unnecessary for the State to demonstrate that these are actual

problems in Missouri's electoral system. Recent precedent from this Court is to the

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 Day v. Holahan,

34 F.3d 1356, 1365 (8th Cir. 1994), cert. denied, 513 U.S. 1127 (1995)) in maintaining

the integrity of their elections. We required some demonstrable evidence that there

were genuine problems that resulted from contributions in amounts greater than the

limits in place. See Russell, 146 F.3d at 568 ("The defendants must prove first that

there is real or perceived undue influence or corruption attributable to large political

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 conclusions concerning the constitutionality of federal campaign

contribution restrictions, the Buckley 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 extrapolate from those examples that in Missouri at this time there is corruption or

a perception of corruption from "large" campaign contributions, without some evidence

that such problems really exist. 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 that

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 cochaired the Interim Joint Committee on Campaign Finance Reform when the

contribution limits 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 narrow

aspect of political association where the actuality and potential for corruption have been

identified") (emphasis added). The senator did not state that corruption then existed

in the system, only that he and his colleagues believed there was the "real potential to

buy votes" if the limits were not enacted, and that contributions greater than the limits

"have the appearance of buying votes." Affidavit of Senator Wayne Goode at ¶ 9. His

statement that "[t]he greater the contribution, the greater potential there is for the

appearance of and the actual buying of votes," id., is conclusory and self-serving, given

the senator's vested interest in having the courts sustain the law that emerged from his

committee. There is no way for us to tell whether this single legislator's perception of

corruption is the "public perception," whether it is objectively "reasonable," and

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 compelling interest that would be served by the restrictions SB650 imposes on

campaign contributions. In fact, the State has been unable to adduce sufficient

evidence even to show that there exists a genuine issue of material fact regarding its

alleged interest. Therefore, the limits here cannot withstand constitutional challenge.
SMG contends that $1,075 in 1976 dollars is the equivalent of just $378 in

4

purchasing power today. The State argues that SMG's use of the Consumer Price 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

it deems more appropriate. In fact, the subsection of SB650 that provides for the

biennial adjustment of the contribution limits to account for inflation relies on the CPI

for the calculation. See Mo. Rev. Stat. § 130.032.2 (Supp. 1997).

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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

demonstrate that the SB650 limits on the amount of campaign contributions are

narrowly tailored to serve that interest. That is, we can say as a matter of law that the

limits at issue here are so small that they run afoul of the Constitution by unnecessarily

restricting protected First Amendment freedoms.

 After inflation, limits of $1,075, $525, and $275 cannot compare with the

$1,000 limit approved in Buckley twenty-two years ago. We previously have

4

acknowledged that the Court in Buckley did not declare that limits of less than $1,000

on contributions are unconstitutional per se, but we also recognize that the $1,000

figure provides us with something of a benchmark. See Day, 34 F.3d at 1366. In

today's dollars, the SB650 limits appear likely to "have a severe impact on political

dialogue" by preventing many candidates for public office "from amassing the resources

necessary for effective advocacy." Buckley, 424 U.S. at 21. Even if the State had

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 protected speech, can

only be regarded as "too low to allow meaningful participation in protected political

speech and association, and thus . . . not narrowly tailored to serve" the alleged

interest. Day, 34 F.3d at 1366.
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In the circumstances presented here, we do not believe that we run the risk of

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 overly

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 larger dollar limits that might be constitutionally sound (that is, narrowly tailored

to serve a compelling state interest), are not "distinctions in degree" but "differences

in kind." Id. But see Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 648 (6th

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 on

direct contributions in connection with federal elections upheld in Buckley"), cert.

denied, 118 S. Ct. 162 (1997). Although, like the Court in Buckley, we are not

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

again remind the State that it has the burden of showing that any limits it places on

campaign contributions are narrowly tailored 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. Once those who would regulate and

limit constitutionally protected political 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 the

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 summary

judgment for SMG and Fredman.
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ROSS, Circuit Judge, concurring.

I concur in the decision to reverse 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 majority 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 opinion 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 today departs from the teaching of Buckley v. Valeo, 424 U.S. 1

(1976), and gives far too expansive a reading to the recent decisions of this Court in

Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), and Russell v. Burris, 146 F.3d 563 (8th

Cir. 1998). Upon a record more slender than the one before us, Buckley upheld

contribution limits of $1,000 per election for all federal offices, while 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 the

contribution limits at issue. 

I.

In Carver and Russell, we faced graduated annual contribution limits between

$300 for statewide offices and $100 for other offices, and we held that both statutes

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 enumerated offices which were elected statewide. Russell, 146 F.3d at 565. The

provisions at issue in Carver contained limitations of $100 per election cycle for

candidates in districts with fewer than 100,000 residents; $200 for candidates in

districts of 100,000 or 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

per “election cycle.” An “election cycle” is the “period of time from [the] general

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 in

Missouri is about $31,000 per year.

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Both statutes were adopted by initiative petitions. We contrasted these limitations

5

with those at issue in Buckley -- $1,000 per election or $2,000 per election cycle -- and

found them “different in kind.” Carver, 72 F.3d at 644; Russell, 146 F.3d at 571. For

example, we observed that the limitations challenged in Carver were the lowest

contribution limits in the nation and that the State had presented only meager evidence

to justify these limitations. 72 F.3d at 641-42. The holdings of Carver and Russell,

that statewide limits of $300 per election cycle “differ in kind” from the limit in

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 now 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 were the more restrictive and therefore provided the relevant limitation

on the plaintiffs’ contributions. Id. at 634-35. Carver 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 those 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 we

compare the $1,075 contribution limit imposed by Senate Bill 650 for each election 2
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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 statewide race, and the presidential elections. Buckley’s reasoning would similarly

uphold Senate Bill 650’s lower contribution limits in non-statewide elections. When

one accounts for the lower number of voters in non-statewide electoral districts, the

limits at issue compare favorably with the $1,000 limit in Buckley, which applied to

statewide races as well as to elections for the U.S. House of Representatives. There

are nine House districts in Missouri, and in the most recent statewide election, the

number of votes cast in these districts averaged 235,094. Official Manual, State of

Missouri 563-65 (1997). Meanwhile, Senate Bill 650 imposes a contribution limit of

$525 upon races for state senators as well as to certain other elections in districts

ranging from 100,000 to less than 250,000 in population. Mo. Rev. Stat. § 130.032

(Supp. 1997). There are thirty-five Senate districts in Missouri. Seventeen of these

seats were contested in 1996, and an average of 59,254 people voted in each election.

Official Manual, State of Missouri 566-67 (1997). When the size of the state senatorial

districts is contrasted with federal congressional districts as well as the entire State

itself, there is plainly no “difference in kind” between these legislative limits and those

countenanced 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 districts averaged

12,325. Id. at 567-80. With the number of voters in such districts, I cannot conclude

that the $275 limit “differs in kind” from those that Buckley upheld. As Buckley

observed, Congress could have structured limits in a graduated fashion, but its failure

to do so did not invalidate the legislation. Buckley, 424 U.S. at 30; Carver, 72 F.3d at

641. Buckley recognizes, then, that graduated limits such as Missouri’s are an

acceptable solution to the dangers posed by unlimited campaign contributions. 

Carver, Russell, and Part III B of Chief Judge Bowman’s opinion in this case

discuss at length the effect of inflation upon the Buckley limits. Carver, 72 F.3d at 641;
See District Court Memorandum and Order at 15-16, J. App. 191-92; see also 3

J. App. 43-52.

In all three cases, the limits at issue were patently “different in kind” from the 4

limits in Buckley, with or without the aid of inflation. Carver and Russell struck

election cycle limits ranging from $300 for statewide offices to $100 for other offices,

while Day struck a $100 limit. Carver, 72 F.3d at 641-44; Russell, 146 F.3d at 569-71;

Day, 34 F.3d at 1366.

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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

campaign expenditures in Missouri’s statewide elections have risen markedly since

Senate Bill 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

Buckley, of course, did not establish $1,000 as the constitutional floor for

permissible contribution limitations; see 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 has

dissipated the similarity between the limits in this case and those approved in Buckley.

Inflation 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 Buckley, the Supreme Court has never added the

“inflation proviso” that Part III B relies upon. If Buckley’s holding must wax and wane

with inflation, as Part III B seems to argue, then the very statute that Buckley upheld

would now be unconstitutional, for inflation alone would render the $1,000 limit

“different in kind” from when the Supreme Court upheld it. Whatever may be the
Indeed, even with the aid of inflation, it does not follow that today’s

5

contribution limits “differ in kind” from what the Supreme Court upheld in 1976.

Differing costs, whether higher or lower, of new communications media (fax machines,

e-mail, and the Internet, as well as more traditional modes of political speech) and

modern fund-raising methods (the emergence of “soft money” is but one relevant postBuckley development) simply make comparison a morass of conjecture. 

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pernicious effects of inflation, I am certain that the First Amendment’s dictates do not

depend upon the Consumer Price Index. 

More importantly, even if it were 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 Buckley

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.

Putting to one side the facial similarity between the statute stricken today and

that upheld in Buckley, the State has adequately justified the contribution limits at

issue. Buckley and our cases both teach that contribution limits are subject to “the

closest scrutiny.” Buckley, 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 corruption stemming from large

financial contributions. 424 U.S. at 26. Both Carver and Russell found no direct

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 present case is readily distinguishable from Carver and Russell. Although

the House and Senate in Missouri preserve no formal legislative history, the record

hardly lacks evidence that the statute at issue limits the reality or perception of undue
The Court today attempts to minimize Senator Goode’s affidavit as the

6

testimony of a single legislator, but the affidavit contains the Senator’s description of

the legislature’s conclusions, which is precisely the support cited by Buckley when it

upheld the contribution limits imposed by Congress. See 424 U.S. at 27, 28, 30. It

must again be emphasized that Goode’s observations are those of the co-chair of the

joint legislative committee from which the limits at issue originated. To brand his

affidavit as “self-serving, given the senator’s vested interest in having the courts sustain

the law 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

description of the evidence before the Committee, the conclusions drawn by the

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. 

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influence and corruption. In summary judgment papers, the State presented 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 Committee on Campaign

Finance Reform that prepared Senate Bill 650, now the statute before us. The senator

stated that the Committee heard “a broad spectrum of opinions ... on the issue of

campaign contribution limits.” He described the committee discussions of what it costs

to run a campaign and the level at which contributions threaten to corrupt political

officials and to erode public confidence 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 believed that contributions over those limits create both the appearance that

contributors could purchase the votes of elected officials 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 curtail
Carver and Russell involved only evidence of certain specific contributions,

7

without evidence of their impact, as after-the-fact justifications for the initiative

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

In addition to the description in Senator Goode’s affidavit, what record is

available to us reflects that the House and Senate in Missouri exerted considerable

effort in reaching accord on the bill finally enacted. Two bills containing contribution

limits were introduced in the House, 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 House

Committee substitute for Senate Bill 650 was ultimately adopted by the House and

Senate and signed by the Governor. This action in both legislative bodies demonstrated

the careful attention given to this legislation and the give-and-take before final

enactment. We commented upon this process in Carver. 72 F.3d at 645 n.18. 

Carver also recited the Supreme Court’s admonition that we “must accord

substantial deference to the predictive judgments of the legislature.” 72 F.3d at 644

(quoting Turner Broadcasting System v. FCC, 512 U.S. 622, 665 (1994)). Turner

referred to the deference owed to Congressional findings. In Carver, we left open the

question whether state legislatures are due similar deference. Carver, 72 F.3d at 644.

Although 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

legislature’s findings in favor of its own. It is hardly counterintuitive that large

campaign contributions might corrupt politics and invite public cynicism. The State has

imposed only modest restrictions upon political speech, and it need not justify them

with scientific precision.
Although the need to limit the perception of political corruption by itself justifies 8

the contribution limits at issue, today’s opinion takes note of what little evidence of

actual corruption was before the Buckley court: the “perfidy that had been uncovered

in federal campaign financing in 1972.” See Buckley, 424 U.S. at 27 n.28. Yet

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 Court’s rejection of the description of Senate Bill 650's legislative

underpinnings is plainly at odds with Buckley. Accepting the argument that the

appearance of political corruption could justify the limitations then at issue, Buckley

stated:

Of almost equal concern as the danger of actual quid pro quo

arrangements is the impact of the appearance of corruption stemming

from public awareness of the opportunities for abuse inherent in a regime

of large individual financial contributions... Here, ... Congress could

legitimately conclude that the avoidance of the appearance of improper

influence “is 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 Employees

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 campaign contributions, but also

the conclusions reached as to “alleviat[ing] these harms in a direct and material way.”

Id. 

I cannot reconcile the short shrift given the Goode affidavit by the Court today

with the Supreme Court’s approach in Buckley, which cited no actual evidence that

large contributions might give rise to the appearance of political corruption and which

deferred to what Congress could have reasonably concluded. See 424 U.S. at 27, 28, 8
Certainly, it provides no suggestion that the Goode affidavit would fail to satisfy

whatever evidentiary inquiry is required to support a legislative body’s conclusion that

financial contributions have created or will create the appearance of corruption. 

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30 (Congress “could legitimately conclude” that avoiding the appearance of corruption

is essential to maintaining confidence in government; Congress “was surely entitled to

conclude” that disclosure limitations alone would not adequately combat corruption and

its appearance; Congress “was justified in concluding that the interest in safeguarding

against the appearance 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 today rejects those conclusions,

which closely resemble those recognized by Buckley when it upheld limitations

strikingly similar to those now at issue. In rejecting the state’s evidence, the Court

sidesteps binding Supreme Court precedent and fails to provide meaningful guidance

to those who might hope to craft campaign reform legislation that will survive this

Court’s unprecedented scrutiny.

III.

It must also be noted that the Sixth Circuit has recently approved a Kentucky 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 doing so disregards the inescapable similarity between the legislation that it

strikes and that which the Supreme Court upheld.
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Perhaps members of the Court quarrel not only with the contribution limits at

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 would affirm the summary judgment of the district court upholding the

contribution limits in Senate Bill 650. 

A true copy.

Attest:

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