“Appearance of Corruption” Cases: Can Political Speech and Association be Limited Because It is Unpopular?

For more information on the Austin, Texas, contribution limits case: No. 18-93, Zimmerman v. City of Austin, Texas, see here. To read the Public Policy Legal Institute and Institute for Free Speech amici brief in Zimmerman, see here.

For more information on the Montana contribution limits case: No. 18-149, Lair v. Mangan, see here. To read the PPLI amicus brief, see here.

Should the government be able to limit the First Amendment-protected rights of speech and association because the speech or association is unpopular? Can the Westboro Baptist Church be punished for inflammatory, repulsive and immoral protests at military funerals? Did the NAACP have to reveal its donors in 1957 Alabama? Could Gregory Lee Johnson be prosecuted for burning the American flag in front of the 1984 Republican Convention in Dallas, Texas? Could Massachusetts ban the First National Bank of Boston from including information in its monthly bills opposing an upcoming ballot initiative increasing taxes? The answer to those questions is almost alwaysNO,” but not always.

One would think that political speech and association would be absolutely protected against popularity contests. After all, “the First Amendment ‘has its fullest and most urgent application precisely to the conduct of campaigns for political office.’” McCutcheon v. Fed. Election Comm., 572 U.S. __, 134 S.Ct. 1434, 1441 (2014), (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). See, also, Republican Party of Minn. v. White, 536 U.S. 765, 781 (2002)(“the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head.”); Brown v. Hartlage, 456 U. S. 45, 60 (1982) (“It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.”); Eu v. San Francisco County Dem. Central Cmte, 489 U.S. 214, 223 (1989) (“[D]ebate on the qualifications of candidates” is “at the core of our electoral process and of the First Amendment freedoms”).“Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963). The government has the burden of demonstrating the constitutionality of the restriction on speech. McCutcheon, 134 S.Ct. at 1452.

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others.

McCutcheon, 134 U.S. at 1461.

The Supreme Court has identified only one governmental interest sufficient to outweigh the considerable First Amendment rights of speech, association and petition inherent in contributions to political candidates and campaigns: “preventing corruption or the appearance of corruption.” The anticorruption rationale has a long history, but it is not boundless.

The government’s anticorruption interest is limited to preventing quid pro quo corruption or the “appearance of corruption.” Quid pro quo corruption is 1) a quid (thing of value given to an official); 2) a pro (the unambiguous agreement connecting the quid to the quo); and 3) a quo (an official act). This quid pro quo requirement applies to both corruption and the “appearance of corruption.”

Yet, there is one curious area in which the government CAN ban unpopular political support: in some parts of the U.S., the “appearance of corruption,” measured entirely by public opinion, is enough to allow a government to limit the political support that can be given to candidates. In other words, if public opinion polls show that some groups are unpopular, they can be banned or limited from making campaign contributions to candidates or political parties.

So, for example, the U.S. Court of Appeals for the Fifth Circuit recently said that an Austin, Texas ballot initiative could limit campaign contributions because voters thought land developers were spending too much money on elections, even though there was no evidence of any actual corruption. And the Ninth Circuit said that Montana could limit campaign contributions because the public thought there was too much money in campaigns and there was a “risk” that there might be some corruption, although not only was no corruption found, but the U.S. District Court expressly found that corruption under the very restrictive Montana campaign finance system was impossible.

The “appearance of corruption” looks at the perceptions of the public at large to see if there is a threat to “‘confidence in the system of representative Government.’” But even with campaign contribution limits, that battle has been lost: “Only 18% of Americans today say they can trust the government in Washington to do what is right ‘just about always’ (3%) or ‘most of the time’ (15%).”

Although the anticorruption rationale includes the “appearance of corruption,” it does not include the “appearance of influence or access.” As the Supreme Court said in McCutcheon v. Fed. Election Commission, 572 U.S. __, 134 S.Ct. 1434, 1441  (2014): “[G]overnment regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” That is because we have a representative democracy, and contributors are expected to support candidates who promise to promote certain policies. As dissenting Justice Anthony Kennedy wrote in McConnell v. Fed’l Election Commission, 540 U.S. 93, 297 (2003): “Democracy is premised on responsiveness.” The key distinction between corruption and “influence” or “access” is whether the campaign contribution is made “in connection with an effort to control the exercise of an officeholder’s official duties.” McCutcheon, 134 S.Ct. at 1441. In other words, is there a quid pro quo or is this just support for a candidate who wants what the donor also wants?

The Supreme Court’s path to this narrowing construction has not been without debate. See, e.g., McConnell v. Fed. Election Commission, 540 U. S. 93, 153-54 (2003), and Justice Kennedy’s dissent, 540 U.S. at 297 (Kennedy, J., concurring in judgment in part and dissenting in part). In Citizens United v. Fed. Election Commission, 558 U.S. 310 (2010), the pendulum swung back to Justice Kennedy’s position: “a sufficiently important governmental interest in preventing corruption or the appearance of corruption [is] limited to quid pro quo corruption.” 558 U.S. at 359.

The “appearance of influence or access will not cause the electorate to lose faith in this democracy”, and thus should not cause an “appearance of corruption.” But an “appearance of influence or access” is easy to show in court. As Prof. Ronald M. Levin has written:

The “appearance” 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.”

This bootstrapping concern is especially prominent in light of recent findings that up to 85% of Americans believe officeholders help donors. These 85% public opinion polls show that fear of corruption already affects Americans’ view of the integrity of government, meaning that demonstrating “an appearance of influence or access” is almost effortless.

This 85% public opinion headwind also means pollsters face an almost insurmountable task in measuring sentiment only about quid pro quo corruption. Research indicates that “The public not only misunderstands the law but also overestimates the sources and amounts of congressional campaign spending.” As several researchers noted in 2016:

A simple poll asking whether money has too much influence in politics, or whether politicians are now “corrupt,” will clearly not suffice, because the Supreme Court has insisted that “quid pro quo” corruption is a peculiar legal concept, to be distinguished from ingratiation, access, or other more capacious notions of corruption. Furthermore, it is not clear that a poll-respondent has sufficient information, the serious and earnest demeanor, and the opportunity to deliberate—all of which are required to give a meaningful response on this question.

A likely contributing factor is media coverage, which “overemphasizes PAC contributions relative to individual contributions in news stories, and the races they focus on tend to involve more spending than the typical race.” The result: “In [a] 2016 survey, 80% of respondents answered that Super PACs were the source of at least half of all 2016 federal campaign spending. While the precise answer depends on the data sources, how spending is defined, and other details, the answer is clearly in the 0-24% range.”

Put bluntly, an unconstrained “public perception” can block speech because the public either doesn’t understand the legal niceties or doesn’t like it. In other words, the quid pro quo corruption evidentiary standard is based on fact-based explanations, while the “appearance of corruption” standard is based on a multi-layered and vague perception, the provenance and dimensions of which may not be apparent or reliable.

An “appearance of corruption” is one of the few areas in which the Supreme Court has suggested that First Amendment freedoms can be limited in response to public opinion or even perceptions of public opinion. Therefore, in determining whether the government has demonstrated a legitimate interest in preventing quid pro quo corruption or its appearance, a court cannot “accept[] mere conjecture as adequate to carry a First Amendment burden.” But what is “conjecture?” Is it the same as “risk” or something else? How much has to be shown to distinguish a guess or groundless prediction (conjecture) from something more substantial?

ZimmermanLair, and other recent cases before the Supreme Court raise the question of how a government or a reviewing court tests an assertion of an “appearance of corruption?” Do those tests separate an “appearance of influence or access” from an “appearance of corruption?” Do the testing instruments or witness analyses speculate without a foundation or with a foundation that is biased or suspect? In short, does the “not illusory,” “not mere conjecture” standard require at least some evidence that the regulated conduct is reasonably likely to result in corruption?

The U.S. Courts of Appeal are split on whether some evidence of actual quid pro quo corruption is required before a government may impose campaign contribution limits. The split is basically whether the evidentiary standard is controlled by the more recent Citizens United and McCutcheon decisions (which require some evidence of actual quid pro quo corruption to justify a public perception of corruption) or the earlier, more lenient McConnell and Shrink Missouri Government PAC cases. The Austin case says that no evidence of corruption is needed, only public opinion polls. The Montana case says that all that is needed is some evidence that someone tried to link a campaign contribution to an official action, even if other evidence shows that there was, in fact, no such attempt, or that such an attempt failed and always would have failed.

So the Public Policy Legal Institute and the Institute for Free Speech have filed amicus curiae briefs in the Austin and Montana cases, asking the Supreme Court to review the evidentiary requirements for a government to show that the “appearance of corruption” is significant enough to justify limits on campaign contributions.