Amicus Brief for Scholars Supporting Appellants’ Petition for Initial Hearing en banc, Lieu v. Federal Election Commission, No. 1:16-cv-02201-EGS (D.C. Cir.)

19 Pages Posted: 10 Jul 2019

See all articles by Christopher T. Robertson

Christopher T. Robertson

University of Arizona - James E. Rogers College of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

Kelly Bergstrand

University of Texas at Arlington - Department of Sociology and Anthropology

D. Winkelman

University of Arizona - James E. Rogers College of Law

Date Written: July 6, 2019

Abstract

Plaintiffs-Appellants have asked the Court to reconsider its decision in SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), which gave rise to so-called Super PACs and similar independent expenditure organizations. The Court in SpeechNow recognized that the “appearance of corruption” could justify campaign finance regulation under Supreme Court precedent. Id. at 692. But the Court went on to state that, “[i]n light of the [Supreme] Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures”—like SuperPACs—“also cannot corrupt or create the appearance of corruption.” Id. at 694.

Amici are scholars who have conducted empirical research about the appearance of quid pro quo corruption in the campaign finance context. This brief is based on Amici’s prior work appearing in the Journal of Legal Analysis. Amici’s empirical research strongly suggests otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in fact create the appearance of quid pro quo corruption. In light of this empirical research, the Court should grant initial hearing en banc and reconsider its decision in SpeechNow, which rests on an incorrect premise.

Keywords: super PACs, appearance of corruption, independent expenditures, quid pro quo, election contributions

Suggested Citation

Robertson, Christopher T. and Bergstrand, Kelly and Winkelman, D., Amicus Brief for Scholars Supporting Appellants’ Petition for Initial Hearing en banc, Lieu v. Federal Election Commission, No. 1:16-cv-02201-EGS (D.C. Cir.) (July 6, 2019). Arizona Legal Studies Discussion Paper No. 19-15, July 2019. Available at SSRN: https://ssrn.com/abstract=3417331 or http://dx.doi.org/10.2139/ssrn.3417331

Christopher T. Robertson (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

HOME PAGE: http://www.law.arizona.edu/faculty/getprofile.cfm?facultyid=714

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

23 Everett Street
Cambridge, MA 02155
United States

Kelly Bergstrand

University of Texas at Arlington - Department of Sociology and Anthropology ( email )

Box 19599 / 430 University Hall
601 S. Nedderman Drive
Arlington, TX 76019
United States

D. Winkelman

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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