About an hour into the lengthy oral argument in a case involving Mississippi’s “heartbeat” abortion law, Supreme Court of the United States Chief Justice John Roberts said: ” It is certainly true that we cannot base our decisions on whether they’re popular or not with the people. … we shouldn’t base our decisions not only on that but whether they’re going to — whether they’re going to seem popular.” Moments later, Justice Stephen Breyer agreed: ” We use reason. We don’t look to just what’s popular.”
But there is just such an instance in which the Supreme Court does just that: the long-standing “appearance of corruption” test decides whether political expression and association can be limited on the basis of whether it is popular. The Court decided not to hear the two cases on the “appearance of corruption” that PPLI and other organizations requested it review in 2018, but on January 19, 2022, the Court will hear exactly that issue in a surprising case.
The Supreme Court of the United States has accepted an appeal in another case that poses the same questions about “the appearance of corruption” as the 2018 Term cases. In Cruz for Senate v. Fed. Election Comm’n, No. 21-12, the Federal Election Commission was sued by Ted Cruz’s election campaign over a limit on the amount of post-election campaign contributions it could use to repay Sen. Cruz’s personal loans to his campaign. Cruz argued that this limit on campaign contributions violated his First Amendment rights under existing campaign finance precedents; the FEC responded by drafting a seriously-flawed public opinion poll as evidence of an “appearance of corruption.”
The Cruz for Senate case is a classic example of the dangers of the “appearance of corruption” model, with a government agency arguing that the constitutional rights of political expression and association can be limited if the public disapproves, and drafting an incomplete and misleading public opinion poll to demonstrate the public disapproval. As Prof. Ronald Levin wrote in a 2001 law review article, the appearance of corruption rationale for contribution limits “means that the most zealous and aggressive advocates of restriction can make accusations, whether well founded in fact or not, and then use the very fact that some people believe the charges as a reason to justify regulation.” The District Court for the District of Columbia (which, to help national uniformity of federal election laws, has jurisdiction over constitutional challenges to FEC rules) rejected the FEC’s justifications because the poll and the FEC’s other support for its regulation was evidence merely of a traditional element of American democracy: a winning candidate is expected to be responsive to those who supported the candidate’s campaign (as opposed to an elected judge, who is supposed to be scrupulously neutral even toward campaign contributors). In other words, all the FEC showed with its public opinion poll was “an appearance of influence and access,” which, under Citizens United and McCutcheon, is not enough to justify a restriction on highly-protected political speech.
The Public Policy Legal Institute has filed an amicus brief with the Court on December 20, 2021, supporting the lower court’s analysis and conclusion about “an appearance of corruption” and asking the Court to affirm Judge Naomi Rao’s opinion in the case. Other organizations, including the Institute for Free Speech, are also expected to file amicus briefs supporting affirmance. Organizations supporting the FEC’s position and asking the Court to reverse the lower court include Public Citizen, the Constitutional Accountability Center, Campaign Legal Center, and the Brennan Center for Justice.
Oral argument in the Cruz for Senate case will be heard on January 19, 2022. A decision is expected before June, 2022.