Amicus Curiae Brief of
Dēmos and Common Cause

In one shocking example, the International Telephone and Telegraph Corporation ("ITT") pledged a $400,000 donation to pay for the 1972 Republican National Convention in San Diego in exchange for the Department of Justice settling a longstanding antitrust suit. This became public when the Washington Post published details of a secret memo from an ITT lobbyist describing the deal. The memo reported that President Nixon had told the Attorney General to "see that things are worked out fairly," and that the Attorney General "is definitely helping us, but cannot let it be known." The memo dramatically ended, "please destroy this, huh?"

When the memo became public, it caused a scandal and ITT immediately began a coverup. It shredded the files of the memo's author and reduced its pledge to $25,000. Meanwhile, the RNC moved the convention from San Diego to Miami. When Nixon's White House tapes were released years later, however, the corrupt scheme was confirmed. Just after ITT made its pledge, Nixon told Deputy Attorney General Richard Kleindienst: "The ITT thing—stay the hell out of it. Is that clear? That's an order … I do not want . . . to run around prosecuting people, raising hell about conglomerates, stirring things up." Kleindienst responded: "Yeah, I understand that." This scandal led Kleindienst to resign and, later, to plead guilty to failing to testify accurately before Congress about the affair.

In another egregious example, dairy industry representatives pledged $2 million to Nixon's campaign "to gain a meeting with White House officials on price supports." Buckley, 519 F.2d, at 839 n.36. Nixon was explicitly notified of the pledge. To evade reporting requirements, the dairy corporations broke down "the $2 million into numerous smaller contributions to hundreds of committees in various states which could then hold the money for the President's reelection campaign."

The payoff worked. In March 1971, Nixon met with dairy industry representatives and increased price supports, overruling his Secretary of Agriculture. Just before Nixon's decision was announced, dairy representatives were told by the White House that Nixon was likely to grant the requested increase. They were asked to reaffirm their pledge, which they did. The appearance of a presidential bribe and the evasion of reporting laws stunned the public.

Nixon's fundraisers also commonly offered ambassadorships in exchange for large contributions. As Vincent de Roulet, a contributor later named ambassador to Jamaica explained, "there were only three or four ways to get [a nomination], one of which was money." Thirty-one ambassadors appointed by Nixon made campaign contributions totaling $1.8 million.

In one notorious example, Herbert Kalmbach, Nixon's personal lawyer, pleaded guilty to promising an ambassadorship to J. Fife Symington in return for a $100,000 donation. Kalmbach testified that Symington wanted a "major post . . . particularly talking about a European post." Kalmbach then asked him to donate $100,000. Symington agreed, but only if he was "certain that [he would] receive an appointment to a European post."

Kalmbach said he could not promise the appointment and Symington demanded assurance from Bob Haldeman, Nixon's Chief of Staff. Kalmbach then received a promise from a Haldeman aide that "[y]ou can go ahead on that." Kalmbach "wrote all this out and gave [Symington] a slip of paper" memorializing the conversation. Symington then gave Kalmbach $50,000 as a first payment.

A few months later, another White House aide told Kalmbach, "We didn't give [Symington] a commitment. We can't do it." Kalmbach was aghast: he replied, "I don't care how you slice it, you did, and it came right out of [Haldeman's] office. And as far as I'm concerned, it's a matter of honor and we live up to what we say we will do." This was honor among thieves. For his role in the bribery scheme, Kalmbach was sentenced to 18 months imprisonment.

Public awareness of this shocking corruption "led to a call for comprehensive corrective measures." Buckley, 519 F.2d at 837. In 1974, Congress amended FECA to strengthen its restrictions on political contributions and expenditures. Congress was concerned that "[t]he unchecked rise in campaign expenditures, coupled with the absence of limitations on contributions and expenditures, has increased the dependence of candidates on special interest groups and large contributors."

In enacting the 1974 amendments, legislators from both parties agreed that contribution limits were needed to dispel the reality and the appearance of corruption. For example, Senator Hubert Humphrey, a Democrat, stated, "Those of us who run for office can profess that the campaign contributions we receive do not in any way control our votes, but I venture to say that not many believe it." And Senator Charles Mathias, a Republican, noted that the public's "feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process." That remains the public perception today, as super PAC contributions have exploded.

The plaintiffs in Buckley argued that both FECA's contribution and expenditure limits violated the First Amendment. But the Supreme Court disagreed. It upheld FECA's limits on contributions, while at the same time striking down the limits on expenditures by candidates and third parties. The Court reasoned, "[b]y contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication." 424 U.S. at 21.

This was so for three reasons. First, "[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." Second, limiting an individual's contribution "permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues." Third, and perhaps most fundamentally, "the transformation of contributions into political debate involves speech by someone other than the contributor."

Because contribution limits only marginally restrict free speech, the Court concluded that "[i]t is unnecessary to look beyond the Act's primary purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions in order to find a constitutionally sufficient justification for the $1,000 contribution limitation." In so ruling, the Court rejected the argument that bribery laws and disclosure requirements would suffice to prevent corruption. In the Court's view, bribery laws "deal with only the most blatant and specific attempts of those with money to influence governmental action," and are insufficient to fully address the risks of actual and apparent corruption.

Five years after Buckley, in California Medical Ass'n v. FEC, the Court upheld FECA's limits on contributions to "traditional PACs"—i.e., PACs that contribute money to multiple candidates. 453 U.S. 182 (1981). The plurality opinion reasoned that contributions to PACs are "speech by proxy … that is not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection," and that there was no First Amendment difference between limiting contributions to a single campaign and limiting contributions to multi-candidate PACs.

Additionally, the limit on PAC contributions "further[ed] the governmental interest in preventing the actual or apparent corruption of the political process" by "prevent[ing] circumvention of" the limitations on contributions to individual candidates. Without limits on PAC contributions, limits on contributions to candidates "could be easily evaded."

Later decisions continued to affirm the distinctions drawn in Buckley. For instance, in Nixon v. Shrink Missouri Government PAC, the Court held that Buckley's "line between expenditures and contributions" applies in the context of state campaign finance laws, like Maine's contribution limit at issue here. 528 U.S. 377, 386 (2000). The Court also reaffirmed Buckley's reasoning that, unlike expenditure limits, "limiting contributions le[aves] communication significantly unimpaired." And in 2003, the Court observed that limits on PAC contributions were proper even if the PACs used the funds to "engage in express advocacy and numerous other uncoordinated expenditures"—i.e., exactly what super PACs do today. McConnell v. FEC, 540 U.S. 93, 154 n.48 (2003).

As has been true since Buckley, contribution limits pass constitutional muster so long as they are "closely drawn" to match a "sufficiently important interest." FEC v. Beaumont, 539 U.S. 146, 158-59 (2003). This includes protecting against the danger of actual and apparent quid pro quo corruption and the circumvention of individual contribution limits.

Buckley's reasons for striking down FECA's expenditure limits are also instructive. The Court explained that, unlike contribution limits, expenditure restrictions "necessarily reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." 424 U.S. at 19. With respect to limits on independent expenditures by groups advocating for a particular candidate—what are now called super PACs—the Court stated that they "do[] not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions." This was because "[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent … alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate."

The Court reaffirmed this thinking in F.E.C. v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 441 (2001), which concluded that "limits on political expenditures deserve closer scrutiny than restrictions on political contributions" because they "curb more expressive and associational activity" and they are less "justified by a link to political corruption." Since Buckley, the Supreme Court has struck down every single expenditure limit that it has considered, but it has upheld most contribution limits to come before it.

In Citizens United, the Court struck down a federal ban on independent corporate expenditures for electioneering communications. 558 U.S. at 365-66. The Court reiterated Buckley's explanation that independent expenditures are less prone to corruption than contributions. Thus, the Court concluded that the government's "anticorruption interest" in limiting independent expenditures "is not sufficient to displace the speech here in question." This is because limits on expenditures are subject to strict scrutiny: they must "further a compelling interest" and be "narrowly tailored to achieve that interest."

Critically, the Court did not address, much less invalidate, any contribution limits. To the contrary, the Court recognized that "contribution limits … have been an accepted means to prevent quid pro quo corruption." The Court emphasized that it was not asked to "reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny," and that it was not doing so. Since then, the Court has twice expressly declined "to revisit Buckley's distinction" between contributions and expenditures. McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 199 (2014); see also Fed. Election Comm'n v. Cruz, 596 U.S. 289, 305 (2022).

As in Buckley, the speech component in a super PAC contribution is marginal, making the government's interest in regulating such contributions legitimate and greater than its interest in limiting independent expenditures. Buckley gave three reasons, equally applicable to super PACs, why contributions to candidates have less expressive value than expenditures. First, "the transformation of contributions into political debate involves speech by someone other than the contributor." Likewise, transforming a contribution to a super PAC into political debate also involves speech by someone other than the contributor.

Second, a "contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." A contribution to a super PAC works much the same way. The contributor expresses support for the super PAC's mission, but the contribution itself does not convey the detailed reasons for that support. The super PAC's leadership decides how to use the funds—whether to air expensive television advertisements, conduct polling, or engage in other forms of electoral advocacy. The individual contributor has no direct control over how the money is used, and the contribution itself does not communicate the contributor's own specific political message.

Third, and perhaps most important, limiting contributions to super PACs "permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues." If the government limits the amount that an individual can contribute to a super PAC, the individual remains entirely free to spend unlimited funds on independent expenditures, to donate to candidates and parties (subject to existing contribution limits), and to engage in unlimited political speech on their own.

The Buckley Court noted that independent expenditures "do[] not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions." This is because "the absence of prearrangement and coordination of an expenditure with the candidate or his agent … alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." Buckley, 424 U.S. at 46.

But contributions to super PACs are entirely different. There is nothing in the law that prevents a contributor from coordinating with a candidate or candidate committee before making a contribution to a super PAC supporting that candidate. The contribution is not required to be independent. The donor could approach a candidate and say: "I will give a massive sum to your super PAC if you commit to supporting my business interests." This is exactly the sort of quid pro quo transaction that Buckley identified as the basis for contribution limits.

Additionally, as the Court recognized in California Medical Association, there is a serious risk that unlimited contributions to super PACs will circumvent the limits on contributions to candidates. A donor who is prevented from giving more than a set amount to a candidate can simply give an unlimited amount to a super PAC committed to supporting that candidate. This accomplishes the same thing: the candidate benefits from massive financial support conditioned upon the donor's ability to make an unlimited contribution.

These risks are not theoretical. As detailed in Section IV below, since 2010, when the D.C. Circuit struck down limits on contributions to super PACs, there have been numerous instances of documented corruption or apparent corruption involving massive super PAC contributions.

In 2015, federal prosecutors indicted U.S. Senator Robert Menendez of New Jersey on corruption charges. The charges included allegations that he had accepted gifts and campaign contributions in exchange for using his political influence to benefit a donor. Specifically, prosecutors alleged that Dr. Salomon Melgen, a wealthy Florida ophthalmologist, made a $600,000 contribution to a super PAC supporting Menendez's 2012 reelection campaign. In return, the indictment alleged, Senator Menendez used his official position to pressure the U.S. State Department to take actions benefiting Melgen's business interests. These included helping Melgen secure contracts with a Dominican sugar company and assisting with a visa matter.

The Menendez case is a paradigmatic example of the corruption that contribution limits are designed to prevent. A donor makes a massive contribution to a super PAC supporting a particular candidate, and the candidate is alleged to have used his official position to benefit the donor. This is precisely the kind of quid pro quo corruption that justified contribution limits in the Watergate era and that the Supreme Court has consistently recognized as a legitimate basis for regulating campaign finance.

Mexican businessman José Susumo Azano Matsura provides another stark example of the corruption made possible by unlimited super PAC contributions. Azano exploited the post-Citizens United campaign finance environment to attempt to purchase political influence in the United States through massive contributions to super PACs. Specifically, between 2012 and 2014, Azano and his associates made approximately $700,000 in contributions to various super PACs with the explicit goal of influencing U.S. elections and policy.

Azano's goal was not political advocacy; it was to buy himself access to U.S. government officials who could help his business interests. According to court documents, Azano sought to exploit his contributions to influence U.S. policy concerning Mexican business matters and to obtain favorable treatment from U.S. government officials. In one instance, Azano and his associates attempted to use their super PAC contributions to gain influence over a mayoral election in a small California city, hoping to elect a candidate who would be favorable to their interests.

In 2017, Azano was sentenced to three years in federal prison for money laundering and campaign finance violations. The court found that Azano had deliberately violated federal election law in an attempt to use unlimited super PAC contributions as a tool to purchase political influence. The Azano case demonstrates that the post-Citizens United landscape of unlimited super PAC contributions has created opportunities for foreign nationals and others to attempt to corrupt the American political process.