“Appearance of Corruption:” Can Political Speech and Association Be Limited Because It Is Unpopular?

“Appearance of Corruption:” Can Political Speech and Association Be Limited Because It Is Unpopular?

UPDATE: The Supreme Court of the United States has denied review of both of these cases. The petition in Zimmerman v. City of Austin was denied on December 10, 2018. The petition in Lair v. Mangan was denied on January 14, 2019. As usual, there was no explanation for the denials.

In the last week, PPLI has filed two amicus curiae briefs in the U.S. Supreme Court dealing with the “appearance of corruption” rationale for imposing limits on campaign contributions. One brief, with the Institute for Free Speech, was filed on August 16, 2018, in Zimmerman v. City of Austin, Texas, No. 18-93; the other brief was filed on August 23 in Lair v. Mangan, No. 18-149.

The briefs look at a hidden, but vitally important issue in these cases. Much of the debate over whether governments can limit campaign contributions is over “corruption,” the exchange of official actions for gifts to the officials. But there is another, related but less-discussed issue: the “appearance of corruption,” which is measured by public confidence in the American democratic system. The evidentiary standard for showing corruption has been recently debated at the Supreme Court and limited to actual quid pro quo corruption. But the lower courts sometimes simply rely on public opinion polls or campaign consultants’ testimony about public opinion to justify campaign limits.

The PPLI amicus briefs ask the Supreme Court to review these cases to be sure that the public opinion polls and other methods used to test an “appearance of corruption” meet the most up-to-date evidentiary standards for justifying contribution limits.

Complete information can be found on this Litigation page.

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