In the years since Buckley, courts have struggled to fill in the jurisprudential interstices and wrestled with the effects of changing campaign conditions over time. From these decisions certain constitutional principles may be culled. Some may be amplified and others diminished when Shrink is ultimately decided, but the principles and propositions which follow will continue to guide public participation in 21st century political campaigns.

I. The First Amendment Protects Political Contributions And Expenditures.

In Buckley v. Valeo, the Supreme Court held that the Constitution protects both political contributions and political expenditures: "[t]he First Amendment affords the broadest protection to such political expression in order 'to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'"⁽⁸⁾ Indeed, the Buckley Court noted that "in Monitor Patriot Co. v. Roy, [it observed that] 'it can hardly be doubted that the [this right] has its fullest and most urgent application precisely to the conduct of campaigns for political office.'"⁽⁹⁾ Thus, the Court held that limits on political contributions and expenditures impact First Amendment rights, because

[C]ontribution and expenditure limitations operate in the area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.⁽¹⁰⁾

The Supreme Court, however, also held, in Buckley, that the government can limit political contributions to candidates to prevent the quid pro quo corruption and its appearance that may arise from persons or groups giving large amounts of money to candidates. On the other hand, because political expenditures are not given to candidates, the Supreme Court has held that, as a matter of law, they do not implicate the sate's interest in preventing corruption.⁽¹¹⁾ As a result, government cannot limit them.⁽¹²⁾

II. Contribution Limits Must Pass Two Separate Tests.

Contribution limits violate the First Amendment rights of both contributors and candidates. Contribution limits prevent contributors from speaking effectively in the political process,⁽¹³⁾ and from associating with the candidates of their choice, and they can also interfere with candidates' abilities to amass the financial resources necessary to express themselves.⁽¹⁴⁾ For contribution limits to pass constitutional muster, therefore, they must satisfy two separate tests - one from the contributor's perspective and one from the candidate's.

A. Contribution Limits Infringe Upon The Free Speech And Associational Rights Of Contributors, And To Be Upheld, They Must Advance The Government's Interest In Prohibiting Quid Pro Quo Corruption Without Substantially Infringing Upon Non-Corrupting Speech And Association.

It can be fairly argued that limiting the ability to spend money in the political process, in this case through contribution limits, adversely affects our system of governance by restricting the resources available for political dialogue.

A restriction on the amount of money a person or group can spend on political communications during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.⁽¹⁵⁾

Because the ability to spend money is thus critical to our capability to debate issues and candidates, contribution limits implicate the First Amendment right to free speech.

More importantly, although less understood, contribution limits implicate the First Amendment right to free association. "The First Amendment," of course, "protects political association as well as political expression," the reason being that "'effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.'" It is for this reason that contribution limits restrict not only the ability to speak about political beliefs, but also the ability to "'associate with others for the[ir] common advancement. . . .'"⁽¹⁶⁾

Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. . . . [C]ontribution ceilings thus limit one important means of association with a candidate or committee [even though] they leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates.⁽¹⁷⁾

In fact, the Supreme Court stated that "the primary First Amendment problem raised by . . . contribution limitations is their restriction of one aspect of the contributor's freedom of political association."⁽¹⁸⁾

As will be discussed more thoroughly below, for contribution limits to be allowed to infringe upon the First Amendment rights of contributors, they must advance the government's interest in preventing the potential for quid pro quo corruption, or its reasonable appearance, that occurs when a large, individual contribution is given to a candidate. But in advancing this interest, the limits cannot be arbitrarily set so low that instead of preventing a few large contributions that hold the potential to corrupt public office holders, they prevent many more smaller contributions that are harmless.

B. At the Same Time, Contribution Limits May Not Be So Low That They Also Prevent Candidates From Obtaining The Resources Needed To Communicate Their Messages to Voters, Thereby Violating Their Right To Engage In Political Speech.

From the candidate's perspective, contribution limits must also not be so low that they prevent him from raising the funds needed to get his message out to the voters. This second test is implied in the following comment in Buckley:

Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication [in this case] that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations.

Id. at 21-22.

Although not articulated by the Court, a reasonable explanation for why contribution limits that prevent candidates from getting out their message are unconstitutional is that they are de facto expenditure limits. Non-voluntary expenditure limits are per se unconstitutional. This, in turn, is based on the fundamental principle that the government cannot dictate how much speech is "enough." Rather, it is up to candidates, political parties, and individuals who wish to engage in speech to determine how much political speech is needed.

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign.⁽¹⁹⁾

The "reformers," however, proceed from the opposite premise: they believe there is too much political spending (there is too much speech), and government must limit this spending (reduce this speech) to an "appropriate" amount, and under their view, the government is to define what amount is "appropriate." It is this premise--one that is obnoxious to the First Amendment--that undergirds efforts to limit candidate spending through contribution limits.

III. Applying Strict Scrutiny From The Contributor's Perspective.

Labeling the scrutiny to be applied to contribution limits is still an open exercise, due primarily to language inconsistently employed by the Supreme Court. The confusion was best summarized and resolved by the recent Eighth Circuit decision in Russell v. Burris, 146 F.3d 563 (8th Cir. 1998). The court in Russell explained,

In Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 609 (1996) (opinion of Breyer, J.), a case involving the application of federal campaign expenditure limits, three justices resorted to what [one proponent of contribution limits] calls a weighing test, rather than strict scrutiny, to decide the case. These justices described their approach as consistent with cases in which the Court "essentially weighed the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views against a 'compelling' governmental interest in assuring the electoral system's legitimacy, protecting it from the appearance and reality of corruption." This adjudicatory approach appears to us to be a restatement or reformulation, not a modification, of the Court's familiar strict scrutiny analysis.

The better argument is that because contribution limits infringe upon contributors' First Amendment rights to political speech⁽²⁰⁾ and association,⁽²¹⁾ they are subject to strict scrutiny. In establishing that contribution limits are subject to strict scrutiny, the Court in Buckley analyzed both the speech and association aspects of contributions.⁽²²⁾

As to the speech component, the Supreme Court stated that "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."⁽²³⁾ However, the Buckley Court found that "the primary First Amendment problem raised by . . . contribution limitations is their restriction of one aspect of the contributor's freedom of political association,"⁽²⁴⁾ and that "contribution ceilings limit . . . one important means of associating with a candidate or committee."⁽²⁵⁾ As a result of "the fundamental nature of the right to associate," the Buckley Court concluded that strict scrutiny was to be applied in evaluating contribution limits: "governmental 'action which may have the effect of curtailing the freedom to associate is subject to the closet scrutiny.'"⁽²⁶⁾ Because contribution limits directly infringe on First Amendment rights of political association, Buckley applied strict scrutiny in evaluating them.⁽²⁷⁾ As will also be shown, the Supreme Court has continued this practice, and both the Eighth and Sixth Circuits have employed it.⁽²⁸⁾

In light of the foregoing, the Eighth Circuit in Carver v. Nixon, ⁽²⁹⁾ held that it must "apply strict scrutiny in" evaluating Missouri's contribution limits. Carver recognized that individual justices of the Court, in dicta, have differed over the level of scrutiny applicable to contribution limits, but, Carver observed, citing the aforementioned portions of Buckley, that the Court articulated⁽³⁰⁾ and applied⁽³¹⁾ strict scrutiny in analyzing the FECA's contribution limits.

Since Buckley, members of the Court, in dicta, have indicated that contribution limits should receive a lower level of scrutiny. In contrast, other members of the Court strongly disagree, arguing that nothing less than strict scrutiny should apply to contribution limits. The Court has not ruled that anything other than strict scrutiny applies in cases involving contribution limits. When the Court in Buckley analyzed the contribution limits, it articulated and applied a strict scrutiny standard of review. Therefore, like other courts since the Buckley decision, we must apply the "rigorous" standard of review articulated in Buckley.⁽³²⁾

The Sixth Circuit appears to have recently echoed this observation. In Kruse v. City of Cincinnati,⁽³³⁾ the Sixth Circuit quoted the portion of Buckley where the Supreme Court stated that "[t]he Act's contribution and expenditure limitations operate in an area of the most Fundamental First Amendment activities."⁽³⁴⁾ Kruse observed that Buckley applied strict scrutiny in analyzing the FECA's contribution limits, and upheld them only because they were narrowly tailored to advance the compelling interest in preventing corruption; Kruse noted that Buckley similarly applied strict scrutiny in analyzing the FECA's expenditures limits, but struck them down because this compelling interest was not implicated as a matter of law:

The Buckley court drew a general distinction between limitations on campaign contributions, which are constitutionally justified by the compelling state interest of preventing corruption and the appearance of corruption in the electoral process, and limitations on independent campaign expenditures, which are unconstitutional because they cannot be similarly justified.⁽³⁵⁾

Both Kruse⁽³⁶⁾ and, most recently, Suster v. Marshall,⁽³⁷⁾ although dealing with restrictions on expenditures limits, appear to indicate that strict scrutiny applies to analyzing restrictions on political spending, generally, not only for analyzing contribution limits.

The Ninth Circuit has taken a different tack, holding that contribution limits are subject to "rigorous" scrutiny -- a standard somewhere below strict scrutiny, but above intermediate scrutiny. The court explained,

while contribution limitations are reviewed under a "rigorous" level of scrutiny, they are not reviewed under strict scrutiny. Restrictions on contributions re upheld when the "state demonstrates a sufficiently important interest and employs means closely drawn to avoid the unnecessary abridgement of associational freedoms." While the test is less stringent than strict scrutiny, "the test is still a rigorous one."⁽³⁸⁾

Whatever the subtle difference between "strict" and "rigorous" scrutiny may be, it at least means the government must still demonstrate that the harms it seeks to prevent by its restrictions on contributions are real -- not simply conjectural.⁽³⁹⁾

Furthermore, the Supreme Court has had opportunities since Buckley to apply a standard less than strict scrutiny and has not done so. Citizens Against Rent Control v. City Of Berkeley⁽⁴⁰⁾ is an example. There, the Court addressed the constitutionality of an ordinance banning contributions above $250 to committees that were formed to support or oppose ballot measures and held that the ban infringed upon the right of association, as well as individual and collective rights of expression.⁽⁴¹⁾ Rather than simply defer to the city, the Court "subject[ed] [the ordinance] to exacting judicial scrutiny" because contributions to committees "is beyond question a very significant form of political expression."⁽⁴²⁾ Not only did the Court not apply a test that was less than strict scrutiny, but it twice stated that when First Amendment rights are impacted, regardless of degree, strict scrutiny is always required.

The appellees concede that the challenged ordinance has an impact on First Amendment rights; the parties disagree only as to the extent of the impact. Long ago this Court admonished with respect to the First Amendment:

"The power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296 (1940).

This was but another way of saying that regulation of First Amendment rights is always subject to exacting judicial review.⁽⁴³⁾

Berkeley went on to reiterate "the importance of freedom of association,"⁽⁴⁴⁾ and that in Buckley it had stated that "The First Amendment protects political association as well as political expression." It then noted that making a "contribution" (albeit in that case, to a referenda committee) "is beyond question a very significant form of political expression," and political association.⁽⁴⁵⁾ The Berkeley Court then immediately reiterated that when a statute infringes First Amendment rights, strict scrutiny is always required: "[a]s we have noted, regulation of First Amendment rights is always subject to exacting judicial review," and then concluded that the contribution limit at issue did not satisfy strict scrutiny.⁽⁴⁶⁾ The Supreme Court's approach in Berkeley validates the conclusions of the Sixth and Eighth Circuits that strict scrutiny is warranted in analyzing contribution limits.

In contrast, it is incongruous to maintain that strict scrutiny does not apply to analyzing contribution limits while contribution limits, like expenditure limits, "operate in an area of the most fundamental First Amendment activities," and where restricting the freedom of association--the primary problem with contribution limits⁽⁴⁷⁾--is the restriction of "a basic constitutional freedom."⁽⁴⁸⁾ This incongruity is underscored by the Supreme Court's repeated pronouncements, such as in Berkeley, that when core First Amendment rights are involved, such as political association, strict scrutiny always applies.⁽⁴⁹⁾ If contribution limits "operate in an area of the most fundamental First Amendment activities,"⁽⁵⁰⁾ and restricting contributions is the restriction of "a basic constitutional freedom,"⁽⁵¹⁾ to wit, the freedom of association, then strict scrutiny must apply. To hold otherwise is to say that strict scrutiny applies to analyzing the infringement of certain "fundamental First Amendment activities" and certain "basic constitutional freedoms," but not to others.

A. The State Bears The Burden Of Proving That Contribution Limits Satisfy Strict/Rigorous/Heightened Scrutiny.

To ensure that government does not suppress First Amendment rights except where there is the utmost need for doing so, the Supreme Court requires government to prove the existence of the "evil" it fears, the source from which it emanates, and that the means it has chosen are needed to eliminate it. Consequently, in trial once a plaintiff has shown that his First Amendment rights have been trenched upon by a government regulation, the burden then completely shifts to the government. The government is then put in the position of: (a) proving a compelling state interest exists for suppressing the protected speech; and (b) that the method employed is narrowly tailored to advance the proven interest. "We again remind the State that it has the burden of showing that any limits it places on campaign contributions are narrowly tailored to serve the State's compelling interest in addressing proven 'real or perceived undue influence or corruption attributable to large political contributions.'"⁽⁵²⁾ If the government does not carry its burden the previously presumed unconstitutionality of the regulation must be ruled conclusively to be so.

To illustrate, in the Arkansas Right to Life State PAC case, plaintiffs moved for summary judgment on the state provision banning all contributions during sessions of the General Assembly. Initially, the court (incorrectly) held that it was plaintiffs' burden to demonstrate that the state did not have a compelling interest for banning contributions.⁽⁵³⁾ One year later, the court granted plaintiffs' renewed motion for summary judgment, this time correctly allocating the burdens. The court wrote,

"[i]n our first opinion, we held that it was the plaintiffs' burden, as the moving party, to demonstrate to the court that no genuine issues of material fact exist as to whether the state has a compelling interest . . . however, we [now] believe it is the defendants that have the burden of proving that there was a compelling state interest and that the statute involved is narrowly tailored to serve that interest."⁽⁵⁴⁾

The shifting of the burden is sometimes missed by the courts because courts are more familiar with according a presumption of constitutionality to legislative enactments passed with procedural regularity. That was the case in a recent decision of a federal court in Colorado. There the court mistakenly applied the more familiar standard in a case challenging a law abridging First Amendment political speech and missed the burden shift: "the court begins its 'review with the venerable presumption that the acts of a state legislature are constitutional. Plaintiffs, as the parties attacking the constitutionality of Amendment 15, must show beyond a reasonable doubt that it is unconstitutional."⁽⁵⁵⁾ Yet, if the First Amendment freedoms are to be given the breathing room needed to flourish, they will be crushed beneath the heavy burden of coming forward put upon those whose rights are injured. Thus, special treatment is accorded First Amendment rights. The Tenth Circuit put it this way: "[w]here . . . a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its constitutionality."⁽⁵⁶⁾ The Eighth Circuit further teaches, "although a duly enacted statute normally carries with it a presumption of constitutionality, when a regulation allegedly infringes on the exercise of First Amendment rights, the statute's proponent bears the burden of establishing the statute's constitutionality."⁽⁵⁷⁾ This only makes sense in that there is (or ought to be) a heavy presumption against the constitutionality of a statute that appears to impinge on constitutionally-anchored rights, and courts have so held.⁽⁵⁸⁾ It follows then, that once a plaintiff comes forward with proof of injury to his First amendment rights, the burden must shift to the government to justify the existence of the injuring statute. To do otherwise relegates constitutional rights to a disfavored status and exalts legislative impingements to the status of presumptive legitimacy. The next section discusses the type of proof with which the government must come forward to meet its burden in defense of regulatory impingements on free political speech.

The government may not go after a group based upon an unsubstantiated fear that exercising First Amendment rights will cause (or is) an evil.

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. . . . To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.⁽⁵⁹⁾

This requirement holds true for even the most seemingly reasonable restrictions on the exercise of First Amendment rights. "As Justice Brandies reminded us, [even] a reasonable burden on expression requires a justification far stronger than mere speculation about serious harms."⁽⁶⁰⁾ But a statute that "singles out expressive activity for special regulation heightens the Government's burden of justification."⁽⁶¹⁾ In such cases, the state bears a heavy burden of proving that a regulation satisfies strict scrutiny:

when the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. . . . It must demonstrate that the harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.⁽⁶²⁾

In Turner Broadcasting System, the Court found that the government did not meet its burden of actually demonstrating that regulating the exercise of First Amendment rights was needed to remedy a specific harm.⁽⁶³⁾ Even though the government could point to legislative findings and an administrative study indicating that the regulation was necessary,⁽⁶⁴⁾ the Court nevertheless found that it had failed to meet its burden. It had failed to prove that the particular regulation was needed to remedy a specific harm.⁽⁶⁵⁾

Contribution limits infringe upon First Amendment rights to engage in political speech and association. The government is thus required to demonstrate, not simply speculate, that there is a problem with actual or apparent quid pro quo corruption in the jurisdiction for which the particular contribution limits are needed, and that they do not infringe upon substantially more political speech and association than is necessary;⁽⁶⁶⁾ in the parlance of the First Amendment, it must introduce evidence that the regulations are carefully drawn.

This requirement has been recognized by several lower federal courts. In Carver,⁽⁶⁷⁾ for instance, the Eighth Circuit reviewed the constitutionality of a Missouri referendum that provided for staggered contributions limits based upon population ($100, $250, and $300). It held that Missouri "ha[d] failed to carry its burden of demonstrating that [its contribution limits] will [prevent quid pro quo corruption] in a direct and material way or is closely drawn to avoid unnecessary abridgement of associational freedoms."⁽⁶⁸⁾ It found that while Missouri had produced some evidence of the need for contribution limits generally, it had not produced any evidence that its contribution limits were not so low that in preventing a few large contributions that might corrupt a candidate, they prevented many more lower contributions that would not, i.e., that they were closely drawn.⁽⁶⁹⁾

The State produced no evidence as to why the Proposition A limits of $100, $200, and $300 were selected. Further, the State presented no evidence to demonstrate that the limits were narrowly tailored to combat corruption or the appearance of corruption associated with large campaign contributions. The record is barren of any evidence of harm or disease that needed to be addressed between the limits of Senate Bill 650 and those enacted in Proposition A.⁽⁷⁰⁾

Because Missouri "made no showing as to why" it needed so severely to "restrict the First Amendment rights of so many contributors in order to prevent corruption or the appearance of corruption associated with large campaign contributions," the Court held "that [its] limits unconstitutionally burden . . . rights of association and expression."⁽⁷¹⁾

If there is no evidence to suggest that particular contribution limits were carefully drawn to combat the appearance of quid pro quo corruption that is associated with large contributions, the State has failed to meet its burden.⁽⁷²⁾

The Federal Election Campaign Act's $1,000 individual contribution limit, reviewed in Buckley, was enacted in a context of previously unlimited federal campaign contributions. In accepting that limit, it can be argued that Buckley did not engage in a demanding review of the government's evidence offered to prove the need for limits. If true, it would follow then that government need not always shoulder the heavy burden of proving instances of actual quid pro quo corruption prior to enacting restrictions designed to prevent corruption from large contributions. To this end, Buckley's statement ("[i]t is unnecessary to look beyond the Act's primary purpose . . . in order to find a constitutionally sufficient justification for the $1,000 contribution limitation")⁽⁷³⁾ has been employed to suggest a lower evidentiary burden. The suggestion is both wrong and right. As to the need to prevent actual corruption, the Court did look for, and found, evidence of actual past quid pro quo corruption. The Court comments, "the deeply disturbing examples [of the pernicious practice of giving large contributions to secure a political quid pro quo from current or potential officeholders] surfacing after the 1972 election demonstrate that the problem is not an illusory one."⁽⁷⁴⁾ To make clear which "deeply disturbing examples" it was referring to, the Court refers to the litany of corrupt acts described by the Court of Appeals.⁽⁷⁵⁾ It can be seen then that pre-Buckley on top of a system allowing unlimited contributions, there were actual examples of huge contributions being given to secure political quid pro quos.⁽⁷⁶⁾ The Court of Appeals had pointed to dairymen pledging (and then laundering) $2,000,000 in contributions in exchange for the President's decision to overrule the Secretary of Agriculture and increase dairy price supports, while six ambassadorial candidates donated a combined $3,000,000 for ambassadorial appointments and one ambassador contributed $100,000 in a trade for an even more prestigious post.⁽⁷⁷⁾

As to appearances of quid pro quo corruption, the Court did appear to lower the bar on the quantum of proof necessary to justify contribution limits. The Court seemed to simply defer to the legislative judgment of Congress: "Congress was surely entitled to conclude . . . that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions."⁽⁷⁸⁾ The key to the Court's apparent deference to Congress is that an appearance of corruption is "inherent in a system permitting unlimited financial contributions."⁽⁷⁹⁾ With the federal government and two-thirds of the states now employing campaign contribution limits, jurisdictions still allowing unlimited contributions are increasingly rare. More commonplace is the scenario where contribution limits already in place, are now being lowered. Where contribution limits are being lowered further, any level of scrutiny demands proof beyond a speculative legislative judgment that the prior limits were ineffective. For example, in Carver v. Nixon, the Eighth Circuit asked the rhetorical question: "[t]he question is not simply that of some [contribution] limits or none at all, but rather [the new lower limits] compared to those [already enacted]."⁽⁸⁰⁾

Again putting the government to its proof in Arkansas, where contributions ceilings were already in place and then lowered further, the Eighth Circuit refused to defer to any "legislative judgment" about the need for lower limits to prevent the appearance of corruption. On the contrary, the court described the necessary inquiry,

[w]e begin with the observation that no defendant provided any credible evidence to the trial court of actual undue influence or corruption stemming from large contributions. We are left, then, to determine whether the defendants proved that a reasonable person could perceive, on the basis of the evidence presented at trial, that such contributions make for undue influence or spawn corruption.⁽⁸¹⁾

Had there been no prior limits in place, the Eighth Circuit might have followed Buckley's lead and simply accepted without evidentiary support the justification that an appearance of corruption in inherent in a system of unlimited campaign contributions. In those jurisdictions where limits already exist, however, evidentiary proof of both actual and apparent corruption must be in the record in order to satisfy the government's burden of justifying its restrictions on First Amendment speech and association.⁽⁸²⁾

Implicit in the inquiry as formulated is another equally important aspect of the government's burden of proof. The court inquired "whether the defendants proved that a reasonable person could perceive, on the basis of the evidence presented at trial, that such contributions make for undue influence or spawn corruption.⁽⁸³⁾ A public "perception" of corruption must be predicated upon something more substantive than popular musings and pedestrian fears. It must be "objectively reasonable."⁽⁸⁴⁾ Put another way, the Eighth Circuit implicitly holds that an irrational public perception of corruption is too light a matter upon which to stifle contributors' and candidates' First Amendment rights.⁽⁸⁵⁾ While public perception based upon actual events could be sufficient (if reasonable), public perception without basis -- or based upon events in some distant setting -- is nothing more than the irrational type of public view for which men once feared witches and burnt women.⁽⁸⁶⁾ Consequently, it can be said that to uphold lowered contribution limits the government's burden is to come forward with evidence of: (1) a real problem of actual quid pro quo corruption that was not being addressed by the prior contributions limits; or (2) an objectively reasonable public appearance of quid pro quo corruption that is both: (a) based upon facts; and (b) perceived through the eyes of a reasonable person. Since neither condition was true in Arkansas, the Eighth Circuit had no trouble striking down the reduced contribution limits. To sum up, a contribution limit may be perfectly reasonable if quid pro quo corruption actually exists. On the other hand, a contribution limit may be highly capricious if such corruption does not exist.

B. The Only Interest That Justifies Contribution Limits Is Preventing The Actuality and Appearance of Quid Pro Quo Corruption That May Exist From Large Individual Contributions To Candidates.

It is well established that the only state interest that justifies limiting contributions is preventing corruption and the appearance of corruption that may result from large, individual contributions to current and potential officeholders.⁽⁸⁷⁾ No other interest has been held by the Supreme Court to be sufficiently compelling to justify limitations on contributions.⁽⁸⁸⁾

1. The State's Interest Is Predicated On Large, Individual Contributions.

This interest is not in "limiting contributions," "preventing corruption," or even "limiting the corruption that may exist from contributions."⁽⁸⁹⁾ Rather, it is in preventing the corruption (and its appearance) that may exist from large individual contributions to candidates.⁽⁹⁰⁾ The Eighth Circuit noted that Buckley "reiterated this interest at least seven times,"⁽⁹¹⁾ and that the Supreme Court has restated this point in scrutinizing the contribution limits in Berkeley.⁽⁹²⁾ There the Supreme Court recounted that "Buckley identified a single narrow exception to the rule that limits on political activity were contrary to the First Amendment": "[that] exception relates to the perception of undue influence of large contributors to a candidate."⁽⁹³⁾

Because the gravamen of the potential corruption problem is large contributions, as opposed to small or medium contributions, regulatory schemes that shut off all contributions can never be narrowly tailored. These campaign restrictions usually come in the form of a context-sensitive prohibition or a temporal ban. One example of the former are inter-candidate transfer bans. Where a strong party candidate may be running against weak opposition, the candidate may be able to amass more campaign funds than is needed to win re-election and transfer some of his campaign funds to other candidates in his party. When California voters passed Proposition 73 to ban such inter-candidate transfers, it was challenged and struck down by the Ninth Circuit in S.E.I.U. v. F.P.P.C.⁽⁹⁴⁾ Proponents of the initiative argued that the inter-candidate transfer ban was justified by the state's interest in "preventing corruption or the appearance of corruption by 'political power brokers.'"⁽⁹⁵⁾ The Ninth Circuit answered that argument by focusing on the ban's failure to distinguish between large and small contributions in the form of candidate transfers. Finding the ban was not closely drawn, the Ninth Circuit explained, "[t]he potential for corruption stems not from campaign contributions per se but from large campaign contributions. The inter-candidate transfer ban prohibits small contributions from one candidate to another as well as large contributions."⁽⁹⁶⁾ Presumably, had the transfer ban applied only to large contributions (however defined), it would have passed constitutional muster.

A recent Oregon initiative provides another example of a context-sensitive complete prohibition on contributions that could not withstand even "rigorous" scrutiny. Measure 6 put in place a prohibition on contributions from individuals who resided outside a candidate's voting district. The measure made no distinction between large and small out-of-district contributions. It prohibited both. When the government was put to its proof, it was clear the measure was not closely drawn and the total prohibition was struck down.⁽⁹⁷⁾ In so doing the Ninth Circuit explained the problem: "Measure 6 bans all out-of-district donations, regardless of size or any other factor that would tend to indicate corruption."⁽⁹⁸⁾ The Court continued, "[a]ppellants are unable to point to any evidence which demonstrates that all out-of-district contributions lead to the sort of corruption discussed in Buckley."⁽⁹⁹⁾ Thus, the contribution ban "was not closely drawn."⁽¹⁰⁰⁾

Another type of a constitutionally suspect undifferentiated context-sensitive ban would be an aggregate limit on PAC contributions. The State of Kentucky has such a ban on PAC contributions to candidates for governor.⁽¹⁰¹⁾ There, once a gubernatorial candidate accepts $150,000 from PACs, the candidate may not accept one dollar more.⁽¹⁰²⁾ Montana voters, by initiative, enacted a much more restrictive limit of the same genre.⁽¹⁰³⁾ Affecting only state legislators, the Montana provision limit for 1998 places an aggregate limit of $1,950 in allowable contributions from all PACs for senate candidates and an aggregate limit of $1,150 for house of representative candidates.⁽¹⁰⁴⁾ The effect, once the limit is reached, is to foreclose any late-contributing PACs from making even a small non-corrupting contribution.⁽¹⁰⁵⁾ Thus, there is effected a total ban on both the right to speak and the right to associate with a candidate through a donation.

An aggregate PAC contribution limit/ban, at first blush, appears to address corruption by limiting the overall amount of contributions a candidate may receive from a particular industry or interest. In doing so, however, such a provision fails to make the important distinction between large individual contributions (which might corrupt) and an aggregated large dollar amount of smaller single contributions (which do not spawn corruption). Russell v. Burris⁽¹⁰⁶⁾ is illustrative of the difference. In Arkansas, the government defended its new contribution limit by presenting evidence of a Poultry Federation fundraising event where a legislator received an aggregate of $22,000 in contributions from various PACs, lobbyists, and corporations.⁽¹⁰⁷⁾ No single source donated over $1,000 ($1,000 was the limit at that time).⁽¹⁰⁸⁾

The Russell court noted there was no change in the legislator's political behavior following the donations, the legislator did not attempt to conceal the contributions or their sources, and the legislator had not voted in any particular fashion after receipt of the contributions.⁽¹⁰⁹⁾ The court had already noted that "$1,000 is simply not a large enough sum of money to yield, of its own accord and without further evidence, a reasonable perception of undue influence or corruption."⁽¹¹⁰⁾ Consequently, Russell found that the appearance of corruption implied by the fact that they all came from the same interest group), was "not related to the size of the contributions made . . . and thus does not satisfy the compelling state interest."⁽¹¹¹⁾ To reiterate, government cannot take many smaller contributions coming from groups with a similar interest and simply aggregate them together to prove a large potentially corrupting contribution. Drawn out further, the flawed logic would assume that the appearance of corruption would result where 2,200 individuals who liked to eat fried chicken each gave $100 to the same legislator -- a patent absurdity.

An additional defect in the design of aggregate PAC limits is that such a limit (or ban) operates irrespective of the potential for corruption that might flow from an additional contribution. This is true because there is no recognized potential corruption from an additional small contribution. Furthermore, even if (contrary to Russell) it were appropriate to consider the unifying interests of manifold individual PAC contributors, the aggregate limit operates irrespective of the alignment of interests of either the contributing PACs or the shut out PACs. To illustrate, suppose ten pro-gambling PACs contributed their maximum $200 contribution to a Montana candidate for senate. The aggregate PAC limit of $1,950 would operate to prohibit any further PAC contributions (as well as $50 of the last contribution) to the candidate. Were there another pro-gambling PAC who wished to contribute, but could not, the result might be applauded. But the aggregate PAC limit would also outlaw a contribution from a pro-family PAC or an anti-gambling PAC or even an environmental PAC. If a single monied person could create a dozen PACs and donate early in a campaign, he could in a sense "capture" the candidate's loyalty, and force every other group to sit out a particular race and watch mute from the sidelines. In this scenario, the statute enhances the potential for actual corruption and increases the appearance of corruption.

At bottom, the aggregate PAC limit approach is flawed because it is aimed at the constitutionally prohibited goal of reducing overall campaign spending, instead of addressing quid pro quo corruption from large individual gifts.

Temporal bans also restrict both large and small contributions and are therefore constitutionally suspect. By "temporal ban" what is meant is a prohibition on all contributions for a certain period of time. Arkansas had a complete ban that prohibited members of its General Assembly from accepting a contribution in any amount in the period 30 days before, during, and 30 days after any regular session of the General Assembly as well as during extended and special sessions.⁽¹¹²⁾ Holding that the provision was not narrowly tailored, a federal court recently declared the provision unconstitutional because, inter alia, "it does not take into account the fact that . . . only large contributions pose a threat of corruption."⁽¹¹³⁾ In so doing it followed courts striking down temporal bans in Missouri,⁽¹¹⁴⁾ Kentucky,⁽¹¹⁵⁾ Tennessee,⁽¹¹⁶⁾ Florida,⁽¹¹⁷⁾ and Massachusetts.⁽¹¹⁸⁾

2. Contribution Limits Must Advance The State's Interest In Preventing Quid Pro Quo Corruption Or Its Appearance.

In addition, as the Court in NCPAC made clear, the "hallmark of corruption" is a "financial quid pro quo: dollars for political favors."⁽¹¹⁹⁾ However, this interest is also narrowly construed to only encompass acts by a politician that are contrary to his obligations of office and the appearance of which must be objectively reasonable.⁽¹²⁰⁾

a. Corruption Is The Quid Pro Quo That Results When Officeholders Are Induced To Act Contrary To Their Obligations Of Office.

The Supreme Court has defined "'corruption [as] a subversion of the political process. . . . [where] [e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.'"⁽¹²¹⁾ Thus, simply "influencing" candidates to act in response to a contribution--including a large contribution--is not corruption; corruption is "influencing them to act contrary to their obligations of office."⁽¹²²⁾ It is "unduly" or "improperly" influencing candidates.⁽¹²³⁾

In contrast, corruption is not defined by virtue of a contributor having a financial interest in legislation before a contributee. It is the quid pro quo. The Ninth Circuit explained the distinction this way:

"it is not the existence of a financial interest that defines corruption, but rather the existence of 'a political quid pro quo from current and potential officeholders.' In other words, it is the connection between a contribution and a political favor that makes a contribution corrupt, not the nature of the political favor."⁽¹²⁴⁾

The distinction may not be simple, but it is critically important. So much so that the Supreme Court went to some length staking out boundaries in the Hobbes Act case of McCormick v. U.S.⁽¹²⁵⁾ In McCormick, the Court reversed the criminal conviction of a state legislator who had been prosecuted for extorting $900 in campaign contributions who thereafter introduced legislation which his contributors had an interest in. In that context, the Court observed,

"[s]erving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. . . . to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime . . . . To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.⁽¹²⁶⁾

Instead of focusing on a correlation between acting favorably on legislation which would benefit a contributor "shortly before or after campaign contributions are solicited and received from those beneficiaries," the Court requires an "explicit promise or undertaking."⁽¹²⁷⁾ The "forbidden zone of conduct" is properly understood in terms of the presence or absence of a quid pro quo:

A moment's reflection should enable one to distinguish, at least in the abstract, a legitimate solicitation from the exaction of a fee for a benefit conferred or an injury withheld. Whether described familiarly as a payoff or with the Latinate precision of quid pro quo, the prohibited exchange is the same: a public official may not demand payment as inducement for the promise to perform (or not to perform) an official act.⁽¹²⁸⁾

To summarize, the correlation in time between a campaign contribution, whether shortly before or after a legislator takes a desired political action, is not "corruption" -- unless there is also a quid pro quo. Without the explicit promise to act contrary to an obligation of office, the correlation is "well within the law" and will exist as long as campaigns are privately financed. To put it simply, there must be more than correlation. There will always be correlation. For corruption there must be causation.

Furthermore, for corruption to exist, that which is caused is something other than a contributor gaining access to a candidate or gaining unequal access, as many reforms and the FEC now argue. This weakness of the access argument was very recently made clear by a federal district court in Colorado. In FEC v. Colorado Republican Campaign Committee,⁽¹²⁹⁾ the court wrote, "[t]he FEC's attempt to broaden the definition of corruption to include mere access is unsupported by precedent."⁽¹³⁰⁾ The court continued,

"Buckley . . . recognized that money, in many cases, may grant access to a candidate. It did not, however, conclude that such access is akin to corruption or the appearance of corruption.

The FEC seeks to broaden the definition of corruption to the point that it intersects with the very framework of representative government. Corruption cannot be defined so broadly.⁽¹³¹⁾

Buckley's discussion of the three state interests supporting reporting requirements makes this clear,⁽¹³²⁾ and it shows what the Court meant by "improper" or "undue" influence and "acting contrary to their obligations of office." The first interest supporting disclosure is enabling voters to determine who is funding a candidate so they know how the candidate is going to respond in office, not because responding to contributors is improper, but because it is important to a voter's political calculus.

First, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.⁽¹³³⁾

That responding to--or being "influenced" by--an official's financial supporters (in a republic, also known as constituents) is not "corruption," is evident by looking at Buckley's discussion of the second interest supporting reporting requirements; there, the Court shows what it means by corruption and, more specifically, by improperly influencing officials.

Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. . . . [F]ull disclosure tends to prevent the corrupt use of money to affect elections.⁽¹³⁴⁾

Thus, by "corruption" and "improper" purposes, Buckley did not mean simply influencing officials with contributions. It meant influencing them to give "special favors . . . in return" for contributions.

But, as the Eighth Circuit in effect noted, "special favors" are not when an official votes in accord his constituents', including his contributors', interests. In Russell, it stated that it would be both silly and dangerous to define corruption in this way.

If it were reasonable to presume corruption from the fact that a public official voted in a way that pleased his contributors, legislators could constitutionally ban all contributions except those from the public official's opponents, a patent absurdity. That would spell the end to the political right, protected by the First Amendment, to support a candidate of one's choice.⁽¹³⁵⁾

Thus, corruption is not when contributions influence officials; this is not, ipso facto, "acting contrary to the[] obligations of office" or quid pro quo corruption. Corruption is unduly or improperly influencing officials, and this, in turn, means when officials grant "special favors" in return for a contribution: voting either contrary to how they believe they should vote or contrary to how their constituents, as evidenced, inter alia, by their contributions, want them to vote.

b. The Appearance Of Corruption Must Be Objectively Reasonable.

The second interest that justifies limiting contribution--prohibiting the appearance of corruption--must be objectively reasonable:

Whatever else is true, the appearance of corruption must be more than illusory or conjectural; instead "there must be real substance to the fear of corruption; mere suspicion, that is, 'a tendency to demonstrate distrust . . . . is not sufficient,' no matter how widely the suspicion is shared."⁽¹³⁶⁾

A perception of corruption is "objectively reasonable" if it is based upon evidence of corruption.⁽¹³⁷⁾ But, for example, that an official receives contributions from interests he usually supports--and then votes in accord with those interests--is not corruption. Russell illustrates that point.

There, the State attempted to "demonstrate specific instances in which large contributions had given rise to the appearance of undue influence or corruption."⁽¹³⁸⁾ "Much of this proof focused on the introduction in the Arkansas legislature of a bill that would have prohibited local governments from regulating tobacco."⁽¹³⁹⁾ The Eighth Circuit noted that even though the bill's sponsor received substantial contributions from tobacco interests, and even though another legislator testified that the public uniformly perceived corruption "associated with the bill's having been introduced and supported by legislators who had received contributions from tobacco interests", this was insufficient to demonstrate a reasonable appearance of corruption.

We believe . . . that the defendants did not prove that the perception of corruption to which Mr. Thomas alluded was objectively reasonable. A newspaper article admitted into evidence quoted [the bill's sponsor] as saying that he supported [the bill] because he believed [in it]. That [the sponsor] received political contributions from those whose interests he tended to support hardly indicates, on its own, any corruption.⁽¹⁴⁰⁾

Moreover, like evidence of actual corruption, relevant evidence of perceived corruption, is that which is based upon large individual contributions.⁽¹⁴¹⁾

We begin with the observation that no defendant provided any credible evidence to the trial court of actual undue influence or corruption stemming from large contributions. We are left, then, to determine whether the defendants proved that a reasonable person could perceive, on the basis of the evidence presented at trial, that such contributions make for undue influence or spawn corruption.⁽¹⁴²⁾

In sum, then, the appearance of corruption must be based upon the magnitude of contributions,⁽¹⁴³⁾ and the magnitude must be large.⁽¹⁴⁴⁾ Instances of alleged corruption that are unrelated to the size of contributions are irrelevant to establishing corruption within the meaning of Buckley.⁽¹⁴⁵⁾

Again, Russell is illustrative. It distinguished allegations of apparent corruption there from similar allegations in Buckley, finding the magnitude of contributions at issue in Arkansas woefully insufficient to lead to a reasonable appearance of corruption.

The defendants' objections to [the sponsor's] activities are also, we believe, essentially unrelated to the size of the individual contributions he received. The defendants did not provide evidence, such as that produced by the government in Buckley, of multimillion-dollar contributions to [the bill's sponsor]. Indeed, our review of the evidence presented to the trial court indicates that [he] reported no individual contributions larger than $1,000 from any source, tobacco-related or otherwise. We believe that $1,000 is simply not a large enough sum of money to yield, of its own accord and without further evidence, a reasonable perception of undue influence or corruption.⁽¹⁴⁶⁾

In sum, the Court noted that, "supporting tobacco legislation, accepting contributions from those appearing before or having interests before one's legislative committee, accepting contributions from supporters outside one's district, or the like,"⁽¹⁴⁷⁾ do not lead to a reasonable appearance of corruption.⁽¹⁴⁸⁾

The ultimate problem with trying to prevent an appearance of corruption that has no basis in fact is that it is an impossible task.⁽¹⁴⁹⁾ In other words, there is "no way to challenge the 'appearance of corruption' -- others' subjective perception that corruption does not exist -- other than to make the case that their perceptions are wrong."⁽¹⁵⁰⁾ In essence, the appearance of corruption justification approves restricting First Amendment rights of contributors to any degree "necessary" to alleviate the appearance problem. However, since the appearance may be based upon events elsewhere, or simply irrational fears, there may be no limit low enough to dispel the apparent corruption problem. Indeed, even a zero limit may not suffice. Polls commonly show a public perception that large corporate contributions in a given state are corrupting candidates, when, in fact, corporate contributions there have already been completely prohibited. When this is the case, the appearance of corruption standard becomes a loose cannon lit by a tyrannous majority and pushed towards contributors. More insidiously, public perceptions may be manipulated by incumbent legislators to justify impeding challenger fundraising through enactment of low (or complete) contribution limits. In any event, at trial, proving or disproving whether an appearance of corruption exists where there is no evidence of actual corruption is something of a fool's errand. The usual trial technique is to look polling statistics, or media pieces, or anecdotal testimony of public officials. None of these sources are very satisfactory. Public officials may base their testimony on the handful of complaints they have handled personally, as opposed to the quiet majority of citizens. Media pieces and newspaper articles naturally tend toward the sensational because such stories are more interesting or newsworthy. Few newspaper headlines are published along the lines of "Voters Perceive Candidates Are Acting Properly." Often times news of corruption occurring in distant jurisdictions influence local voters to surmise similar corruption must be occurring at home.⁽¹⁵¹⁾

Polls are likewise unsatisfactory. While polling may reveal the public opinion or perception, polls do not reveal whether the perception is informed or imagined, reasoned or irrational. Thus, limiting the First Amendment contribution rights of some based upon a public (mis-)perception of corruption is reminiscent of forcing World War II Japanese Americans into internment camps based upon a public perception that all people of Asian descent are spies, or burning women at the stake because the public feared witches. Consequently, it is wholly unsatisfactory, if not truly worrisome, to eviscerate the First Amendment upon "evidence" as evanescent as unfounded public perceptions.

3. Contribution Limits Must Be Narrowly Tailored To Prevent The Quid Pro Quo Corruption That Results From Large, Individual Contributions.

As noted, the interest that supports restricting contributions is preventing quid pro quo corruption that may result from large, individual contributions to candidates.⁽¹⁵²⁾ If large contributions are not limited, then the government is infringing upon substantially more political speech and association than is necessary to prevent quid pro quo corruption. Thus, if people believe that officials are giving a quid pro quo in exchange for a $10,000 contribution, then a contribution limit that is close to $10,000 is carefully drawn; a $100, $250, $500, or $1000 contribution limit is not.

This issue is important because the Supreme Court has instructed that "[i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000."⁽¹⁵³⁾ The Court went on to explain, "[s]uch distinctions in degree become significant only when they can be said to amount to differences in kind."⁽¹⁵⁴⁾ It follows that once the government has shouldered its burden of proving a compelling state interest in preventing a proven problem with quid pro quo corruption or its reasonable appearance, then the question becomes how best to evaluate or scrutinize the chosen dollar limit. While a court should not be probing the patient with sharp scalpels, something more is required than simply dismissing a sick statute upon taking the public pulse. Thus, several diagnostic approaches have been employed.

a. Absolute Comparisons To The Contribution Limits Buckley Upheld.

Perhaps the most obvious approach is the use of the absolute comparison, without adjusting for inflation. For example, in Day v. Hays,⁽¹⁵⁵⁾ the first case to strike down a contribution limit as so low as to be "different in kind" from Buckley's limit, the court compared a $100 contribution limit and contrasted it directly to the $1,000 limit upheld in Buckley. Another court compared a $200 limit on contributions to a political action committee and compared it to the federal $5,000 limit for PAC contributions upheld by the Supreme Court in California Medical Association v. F.E.C.⁽¹⁵⁶⁾ The court observed that a $200 limit was less than 5 percent of the federal $5,000 limit, and based upon this and other comparisons struck it down.⁽¹⁵⁷⁾ As the Eighth Circuit recently remarked, "the Court in Buckley did not declare that limits of less than $1,000 on contributions are unconstitutional per se, but we also recognize that the $1,000 figure provides us with something of a benchmark."

b. Relative Comparisons To The Contribution Limits Buckley Upheld.

More common are comparisons between Buckley's $1,000 limit and current limits using inflation-adjusted dollars. Again, the case of Day v. Hays⁽¹⁵⁸⁾ was in the vanguard of cases employing this approach. Setting a trend now widely followed, the court took notice that the $100 allowed under a Minnesota limit translated to the equivalent of "$40.60 at the time of Buckley," thus, in real terms it translated into 4% or 1/25 of the amount permitted by Buckley.⁽¹⁵⁹⁾ In the recent Shrink Missouri Government PAC v. Adams decision, the court put it simply, "[a]fter inflation, [Missouri's] limits of $1,075, $525, and $275 cannot compare with the $1,000 limit approved in Buckley twenty-two years ago."⁽¹⁶⁰⁾ In Shrink, the court noted the fact that $1,075 in 1976 dollars is the equivalent of just $378 in purchasing power today.⁽¹⁶¹⁾ Six months earlier than Shrink, the Eighth Circuit had pointed out in Russell v. Burris, that Buckley's $1,000 would be worth approximately $2,500 in 1998-dollars after adjusting for inflation.⁽¹⁶²⁾ In view of the effects of inflation in Russell, that court found Arkansas' limits of $300 and $100 to be only twelve percent and four percent, respectively, of Buckley's $1,000 limit when inflation is considered. Looking at inflation from a different angle, Russell also compared similar dollar limits that were imposed on an election cycle basis (as opposed to a per election basis) and astutely observed that the $300 and $100 limits were the equivalent of only six percent and two percent of Buckley's $1,000. These inflation-adjusted limits the Eighth Circuit described as "dramatically lower than, and different in kind from, the limits approved in Buckley, and thus are unconstitutionally low."⁽¹⁶³⁾

Other courts have likewise considered the effects of two decades of inflation on Buckley's $1,000 benchmark. For example, a federal court in California in striking down variable contribution limits of $500, $250, and $100, recognized the effects of inflation in comparing the California state limits against Buckley. Analyzed from the obverse side of the coin, the court found the California limits depreciated to their deflation-adjusted 1976 values, were much lower than the limits Buckley upheld: 1998's $500 would have been be worth only $167 in 1976, 1998's $250 would have been worth only $83 in 1976 dollars; and the 1998 $100 limit would have been the equivalent of a $33 limit in 1976.⁽¹⁶⁴⁾ While Buckley upheld a $1,000 contribution limits, it most assuredly would not have upheld a $167, $83, or $33 contribution limit.

Adjusting Buckley's benchmark limit of $1,000 to account for the eroding effects of 20 years of inflation has its critics. One criticism is that Buckley remains precedent to which the Court "has never added the 'inflation proviso.'"⁽¹⁶⁵⁾ Another criticism is that the $1,000 limit upheld by Buckley would itself, if adjusted for inflation, now be unconstitutional. This argument, of course, simply begs the question, (i.e., "would the Court, if given the opportunity today, strike down as too restrictive a $1,000 contribution limit on giving to federal candidates?"). Given the many changes in the Court's makeup since Buckley, no one is sure what that answer would be. A third argument against adjusting the Buckley benchmark for inflation is based upon a visceral discomfort with tying First Amendment rights to the effects of inflation over time. For example, it has been said "[w]hatever may be the pernicious effects of inflation, I am certain that the First Amendment's dictates do not depend upon the Consumer Price Index."⁽¹⁶⁶⁾ The rejoinder is that the exercise of First Amendment political speech is intimately tied to the economic costs of communicating that speech. Analogizing dollars to gallons of gasoline, the Supreme Court explained,

[b]eing free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.⁽¹⁶⁷⁾

Finally, inflation-adjusted comparisons to Buckley's benchmark have been questioned based upon conjecture that the Consumer Price Index does not provide an accurate measure of the costs of political communications. Those in favor of lower contribution limits point to emerging technologies that permit inexpensive communications such as World Wide Web home pages for candidates, broadcast e-mailing across the Internet, and broadcast faxing and argue that campaigning has become less expensive over time.⁽¹⁶⁸⁾ Advocates of higher limits remonstrate that the rising costs of traditionally effective avenues of political communication (television, radio, and newspaper advertising, and the U.S. mail) have all outpaced the general Consumer Price Index. Additionally, voters will not visit a candidate's web page on their own initiative, and just as it takes much effort to assemble an effective mailing list, it will take new effort to assemble fax and e-mail lists, and such lists will never reach the unidentified voter. While advances in communication technologies hold promise for reducing the cost of delivering a candidate's message, the day has not yet come. Thus, at present, the general inflation rate probably understates the effects of inflation on political communication. c. Contributions Under New Limits Compared To Contributions Under Former Limits (i.e., "Contributions Lost").

Another common technique for determining whether a particular contribution limit is narrowly tailored to prevent only those "large" contributions that carry with them the potential to corrupt is to engage in a hypothetical before-and-after study of contribution patterns. This approach is implied by the Buckley decision comments at notes 23 and 27. In these notes, the Supreme Court took comfort in the fact that only 5.1 percent of the money raised by Congressional candidates in 1974 came from donations over the new $1,000 limit -- in other words, the Court projected that 94.9 percent of all contributions would continue to be received by candidates notwithstanding the new limit.⁽¹⁶⁹⁾ While 5.1 percent is not a magic point, it is another benchmark for gauging how narrowly tailored a new contribution limit might be for the task of proscribing only those contributions which are "large."

This exercise measures the number of individuals contributors impacted by a new limit. The blueprint for this type of analysis was, again, first drawn in Day v. Holahan⁽¹⁷⁰⁾ and built upon in National Black Police Association v. District of Columbia Board of Elections and Ethics.⁽¹⁷¹⁾ In National Black Police Association, a federal court reviewed the presumed effects of a newly imposed $100 limit. In 1992, lower limits were adopted for candidates in the District of Columbia. To understand the effects, the court looked at contribution patterns from the previous 1990 election. The change was fairly dramatic. For example, focusing on the seven mayoral candidates, the court noted that the percentage of the number of prior contributions now over the limit was much greater than 5.1%. In fact, the percentages of the number of contributions cut off by the new lower $100 limit were: 54%, 47%, 44%, 41%, 35%, 28%, and 17%.⁽¹⁷²⁾

Another example is found in the case of Carver v. Nixon.⁽¹⁷³⁾ In Carver, the court analyzed past contribution patterns in striking down a set of $300, $200, and $100 limits for statewide candidates, state senate candidates, and state house candidates, respectively. It found significant that 27.5% of contributors to the previous State Auditor's race gave in amounts above the $300 limit, while 23.7% of contributors gave amounts above the new $200 limit in Senate races, and 35.6% of contributors would be similarly cut off from making the same contributions to House candidates that they made the previous election.⁽¹⁷⁴⁾ The court asked why it was necessary to "restrict the First Amendment rights of so many contributors."⁽¹⁷⁵⁾

A third example comes from the recent decision in California ProLife Council PAC v. Scully.⁽¹⁷⁶⁾ The court measured the percentage of contributions to legislative candidates that would have been disallowed, or lost, had the $250 or $500 limit been in place during a prior election. At the $500 limit, between 52% and 67% of donations to incumbents would have been disallowed, while between 69% and 81% of donations to challengers would have been prohibited.⁽¹⁷⁷⁾

Such statistics reveal how many contributors are hurt by limits. From the candidate's perspective, it tells little. Calculating the numerosity of contributions cut off does not measure the impact on the candidate from the amount of campaign dollars lost. From the candidate's perspective it may be more important to examine the total dollar amount of contributions which would now be over the limit (and thus, cutoff in future elections), and if possible the period in the campaign at which the large contributions were received (a point which will be discussed later). While the National Black Police Association court did not have that data for the mayoral candidates, it did have data for eight City Council candidates.⁽¹⁷⁸⁾ Two examples illustrate why the percentage of contributions may be more or less than the percentage of actual campaign receipts lost under new limits.

In one case a candidate for City Council received a total of 721 individual contributions amounting to $128,536. Of those, 231 contributions (or 32%) were over the new limit. Significantly, the 32% of contributions over the limit accounted for $82,104 (or 64%) of the total fundraising receipts for the candidate's campaign.⁽¹⁷⁹⁾ In another case, the opposite effect is observed. A second candidate received a total of 360 contributions, of which 303 (or 84%) were in amounts over the new limit. Yet the 84% of contributions accounted for a smaller percentage of overall fundraising receipts. That candidate raised a total of $95,565 in campaign funds, of which only $62,055 (or 65%) came in amounts which would now be cutoff by the new limits.⁽¹⁸⁰⁾

Furthermore, neither approach accounts for the disproportionate influence of the timing of large contributions. It is a fact of political life that to be competitive, challengers often need a few large contributions very early in their campaigns (known as "seed money") to become viable candidates.⁽¹⁸¹⁾ Conversely, candidates sometimes need large contributions near the very end of a campaign to combat unexpected events such as large independent expenditures or a barrage of negative news pieces that demand a candidate's response.⁽¹⁸²⁾ Low contribution limits stymie a candidate's ability to acquire seed money early or respond to independent expenditures late. Low limits, likewise handcuff a contributor who desires to support a candidate with seed money or help a candidate respond to a late-breaking negative advertisement.

Buckley never addressed the quandary facing a candidate being overwhelmed late in a campaign with independent expenditures. At the same time, while Buckley did address the need for seed money, it left the issue for future decisions to evaluate the impact of contribution limits on acquiring seed money. The Court observed,

Although appellants claim that the $1,000 ceiling governing contributions to candidates will prevent the acquisition of seed money necessary to launch campaigns, the absence of experience under the Act prevents us from evaluating this assertion. As Appellees note, it is difficult to assess the effect of the contribution ceiling on the acquisition of seed money since candidates have not previously had to make a concerted effort to raise start-up funds in small amounts.⁽¹⁸³⁾

The Buckley Court assumed that the lost contributions resulting from the $1,000 limit could simply be replaced through "efforts to raise additional contributions" from additional persons giving amounts within the limit.⁽¹⁸⁴⁾ While this might be the case where only 5.1% of contributors are being cutoff (as was true in Buckley), this is also the common retort of defenders of low limits regardless of the amount of lost contribution dollars.⁽¹⁸⁵⁾ Candidates, on the other hand, groan under the weight of now-necessary constant fundraising efforts that detract from their time spent communicating their message to voters.⁽¹⁸⁶⁾ At some point, it belies sensibility to cling to the hope that campaign funds cut off by contribution limits can be replaced through candidates working harder to raise contributions from more and more sources without a deleterious effect on political dialogue.⁽¹⁸⁷⁾

d. The Percentage Of Disallowed Contributions.

A newly employed approach to separating contribution limits posing a difference of degree from limits that are different in kind, is the approach of examining the new limits as a fraction of prior campaign expenditures and comparing it to the same fractional result at the time of Buckley. When Buckley approved in 1976 the $1,000 limit for federal candidates, the average expenditure on a federal House race was $74,000. Thus, since the $1,000 limit was a per election limit, by dividing $74,000 by $2,000, it can be seen that the contribution limit meant that one person was limited to contributing 1/37th of the overall expenditures of an average House candidate.

With that comparison in view, the court in California ProLife Council PAC v. Scully found that a $250 per election limit on contributions to California Assembly candidates made up only 1/727th of the average total expenditures for an Assembly candidate based upon California elections from 1984-1994.⁽¹⁸⁸⁾ Other evidence was also introduced that for California State Senate campaigns, the $250 per election limit amounted to merely 1/1143rd of the average total campaign expenditure.⁽¹⁸⁹⁾ Consequently, the court found "the [$250 per election] limits of Proposition 208 are from 20 to 30 times as restrictive as those [$1,000 per election limits] in Buckley."⁽¹⁹⁰⁾

The implication is that Buckley approved of a limit where on average a candidate's entire campaign could be financed by 37 contributors, notwithstanding the potential for a candidate falling beholden to his or her 37 main contributors. If the risk of candidates being "bought" by 37 contributors is a tolerable tradeoff for protecting contributors' rights to associate with candidates, then there is no justification for diminishing the risk to the point of spreading the risk out to 727 contributors or 1,143 contributors by imposing much smaller limits relative to average campaign expenditures.

e. Variable Contribution Limits Do Not Advance The State's Interest In Preventing Quid Pro Quo Corruption And Are Not Narrowly Defined.

By "variable limits" what is meant is a regulatory scheme which imposes a set limit for all candidates, but permits a higher contribution limit for candidates who agree to modify their campaign behavior in some specified way. For example, a state might impose an across the board contribution limit of $500, but specify that if a candidate agrees to limit his campaign spending to a predetermined amount the contribution limit for that candidate would be doubled to $1,000. Thus, the limit varies upward as a reward for statutorily encouraged behavior of individual candidates. This was the case in California under Proposition 208. Another example is legislation encouraging formation of particular types of political action committees. In Arkansas, Initiated Act I set an across the board limit on contributions to candidates ($300 for state wide candidates; $100 for other candidates) which could be received from a political action committee. However, one type of PAC (a "small donor" PAC) was permitted to contribute $2,500 to a candidate. Thus, the scheme encouraged the creation of PACs which amassed funds in small $25 increments.⁽¹⁹¹⁾ In other words, the contribution limits varied according to the behavior of the PAC.

As a matter of law, variable contribution limits are not closely drawn.⁽¹⁹²⁾ A statute is closely drawn when the means chosen do not "burden substantially more speech than is necessary to further the government's legitimate interests."⁽¹⁹³⁾ In the case of variable limits, however, by permitting the higher limits the government has essentially admitted that lower limits are lower than needed to prohibit quid pro quo corruption.⁽¹⁹⁴⁾ This is true because of the implicit state finding that a contribution made at the higher limit does not present a risk of actual or apparent corruption. The California ProLife Council PAC court summed up the problem with variable limits this way,

Whatever else may be true of Proposition 208's variable limits scheme, it seems relatively clear that the electorate has manifested its judgment that the higher limitations are not unacceptably corrupting . . . It follows that the lower limits are not closely drawn to achieve the only governmental purposes sufficient to justify regulation.⁽¹⁹⁵⁾

Then, to make the point absolutely clear, the court wrote,

Put another way, the adoption of the variable limits reflects a conclusion on the part of the voters that the $200 limit suffices to address the issue of corruption even if it is not the lowest amount which would do so. That conclusion requires a finding that the lower limit is not closely drawn.⁽¹⁹⁶⁾

In the context of voluntary expenditure ceilings, variable limits tend to make any contribution more significant to a candidate because he or she need no longer raise an unlimited amount of campaign funds, only funds to reach the ceiling. The unintended consequence is that the variable limit allows a person to make a larger contribution at the precise time when the overall campaign budget has shrunk. Thus, a favor-currying contributor will be in a position to exercise a disproportionately large influence over a candidate's ability to amass needed campaign money, and as a result, over the candidate. The upshot is that variable limits tied to expenditure ceilings may tend to increase, not decrease, quid pro quo corruption.

The variable limits for small-donor PACs suffer the defect in that they too tend to increase, rather than decrease, corruption. Defenders of variable limits for small-donor PACs claim the variation is acceptable because small-donor PACs receive their money in non-corrupting small increments. Consequently, the argument goes, no one contributor would be likely to control a the PAC.⁽¹⁹⁷⁾ The Eighth Circuit in Russell exposed the weakness of that rationale, by pointing out that the argument "ignore[s] the possibility that the small-donor PAC itself will seek to control a given candidate."⁽¹⁹⁸⁾ Russell then takes a different tack from California ProLife Council PAC. The Russell court does not find that the higher limit reflects the manifest judgment of the electorate that a $2,500 contribution is non-corrupting. Instead, Russell concludes that if any amount is potentially corrupting, it is the higher $2,500 amount which is multiplied times greater than the amounts permitted to be given by all other contributors. Holding that the variable limits were not narrowly tailored, the court explained,

[a] $2,500 contribution would be even more likely to exacerbate this difficulty than the $1,000 contribution limit applicable to most other contributors. Indeed, if any contribution is likely to give rise to a reasonable perception of undue influence or corruption, it would be one from an entity permitted to contribute two-and-one-half times the amount that most others are allowed to contribute.⁽¹⁹⁹⁾

Contrary to "reformers'" view, coupling the higher contribution limits with expenditure limits does not mean the lower contribution limits are carefully drawn. As noted, the interest that justifies restricting contributions is limiting quid pro quo corruption that may occur when large, individual contributions are given to candidates. It is not in limiting the number of contributions. Thus, the fact that expenditure limits will reduce the number of contributions a candidate must raise, does not advance the government's interest in limiting the size of contributions; contribution limits do that.

Indeed, Buckley struck down the FECA's expenditure limits for that reason: they would not advance any of the state's interests, including, most importantly, its interest in preventing quid pro quo corruption from large contributions.⁽²⁰⁰⁾

No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608(c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by § 608(c)'s campaign expenditure ceilings.⁽²⁰¹⁾

"Reformers" thus err in arguing that combining a restriction on campaign expenditures--a restriction which the Supreme Court squarely held will not advance the state's interest in preventing quid pro quo corruption--with contribution limits that are double (or more) the size of the lower contribution limits, will magically cure the lower limits of their substantial overbreadth. These two uncompelling factors, when added together, do not a compelling interest make. Zero plus zero is still zero.

Once the red herring of expenditure limits is removed, it is evident that lower limits are substantially overbroad and not narrowly tailored as a matter of law. For example, with California's Proposition 208, the electorate essentially admitted that contributions of $250, $500, and $1,000⁽²⁰²⁾ are not corrupting--and in the case of small contributor committees which contribute to candidates who accept expenditure limits, it has admitted that contributions of $500, $1,000, and $2,000⁽²⁰³⁾ are not corrupting; yet it prohibits contributions of $100, $250, and $500. Prohibiting all contributions between $100 and $250 (or $500), $250 and $500 (or $1,000), and $500 and $1,000 (or $2,000) infringes on substantially more speech and association than is needed to address corruption that apparently does not begin to occur at least until $251 (or $501), $501 (or $1,001), and $1,001 (or $2,001).⁽²⁰⁴⁾

In sum, the only compelling interest Buckley recognized for restricting contributions is limiting quid pro quo corruption that may result from large, individual contributions to candidates. Buckley, supra. Given the interest in preventing large contributions (however "large" is defined), how can variable contribution limits have [two, three, four, etc.] sets of progressively higher contribution limits? The answer is that in these cases the electorate is not really sure what "large" is, and the drafters of these proposals want different contribution limits to advance other interests: reducing the money spent and raised and reducing contributions from certain sources. But of the different sets of contribution limits, states cannot justify the lower limits simply by tying them to higher limits.

IV. Applying Strict Scrutiny From The Candidate's Perspective.

To state the obvious, contribution limits not only injure contributors, they also impact candidates.⁽²⁰⁵⁾ And like the contributor's right to engage in political speech and to associate with a given candidate, a candidate also enjoys a First Amendment right to associate with a given contributor and receive a contributor's speech, as well as engage in political speech of his own.⁽²⁰⁶⁾

On one hand, contribution limits impinge on a candidate's ability to receive speech, but do not directly prohibit the candidate from engaging in his own speech. On the other hand, campaign expenditures limits directly impinge upon a candidate's ability to speak and as a result were rejected as unconstitutional by the Supreme Court in Buckley.⁽²⁰⁷⁾ Contribution limits, when viewed from the candidate's perspective, operate more circuitously than expenditure limits upon a candidate's ability to speak. Nevertheless, "[b]ecause campaign contributions translate into a candidate's speech,"⁽²⁰⁸⁾ at some point contribution limits can be so low that they actually impinge upon a candidate's ability to speak This occurs when the impediment to amassing contributions prevents the candidate from raising the funds necessary to disseminate his speech. This was perhaps the primary basis upon which the Shrink court recently struck down limits above $1,000. Shrink held, "[i]n today's dollars, the [$1,075, $525, and $275] limits appear likely to 'have a severe impact on political dialogue' by preventing many candidates for public office 'from amassing the resources necessary for effective advocacy.'"⁽²⁰⁹⁾ In this way, when contribution limits operate as de facto candidate expenditure limits, they become per se unconstitutional.

The Supreme Court did not have sufficient experience with contribution limits at the time of Buckley to flesh out the constitutional ramifications for candidates of limiting contributions. But the Court explicitly cautioned:

Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.⁽²¹⁰⁾

The most recent case to extensively explore this area undeveloped in Buckley's time is the California ProLife Council PAC v. Scully case from the Eastern District of California. There the court noted that "in Buckley's record 'there is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations,'" and found "[t]his contrasts with the instant record where the court has concluded that the contribution limits will prevent the marshaling of assets sufficient to conduct a meaningful campaign."⁽²¹¹⁾

The court found a myriad of reasons among its 456 individual findings of fact why candidates would be hamstrung by the low contribution limits. Some deserve closer attention. Finding that campaigns cost more in California than elsewhere, the court found that direct mail, radio, and television advertising are a necessary part of campaigning in large districts if a candidate wants to get his message out.⁽²¹²⁾ Along these lines, political mailings from candidates compete not only with one another for a recipient's attention but also with approximately 22 pieces of junk mail that California households receive each week.⁽²¹³⁾ As a result, repetition is essential for a candidate's message to be heard, meaning at least five mailings are essential for a meaningful mail campaign.⁽²¹⁴⁾ When funds are insufficient, candidate communications are pushed to the last week of the campaign in order to get some benefit of repetition.⁽²¹⁵⁾ The court also found that it costs the same or more to raise a small contribution as it does to raise a large one, and that direct mail fundraising is administratively very expensive.⁽²¹⁶⁾ A candidate raising funds in small increments also must change the way he communicates with potential voters, according to the court's findings. "Time a candidate spends raising money is time that he or she would otherwise spend meeting voters, communicating their message."⁽²¹⁷⁾ As a result, the more time which must be spent reaching out to additional contributors, will be time not spent on getting their message out to voters. The same holds true for campaign volunteers. Time campaign volunteers spend making fundraising calls, is "time that they would otherwise spend walking door to door or organizing coffee klatches to communicate the candidate's position and background to voters."⁽²¹⁸⁾ Low contribution limits then have the effect of placing several hurdles in the path of a candidate trying to get his message out. First, low limits make it more difficult to raise money because more candidate effort must be spent finding additional donors to raise the same amount of money. Second, the time a candidate spends finding additional donors is time which will not be spent actually meeting and talking with voters. Third, time spent by a candidate's volunteers is time which will not be spent distributing his message. Fourth, if less than what is needed can be raised, the candidate's message suffers either in the form of less discussion and more name repetition or in the form of less overall repetition or initial coverage.

Finally, one struggle candidates face, heretofore unrecognized in the caselaw, is that regulatory schemes which handcuff a contributors' ability to financially assist a candidate will eventually channel the unspent money into the only uncapped outlet for contributor's speech: independent expenditures. The effect of increased independent expenditures is to elevate the "noise" level of campaign rhetoric through which a candidate must deliver his own speech. In the court's words, "[t]he problem is compounded by the fact that one effect . . . is to divert campaign contributions from the candidate to independent expenditures, thus providing a source of campaign rhetoric which may drown out or at least dilute the candidate's own message."⁽²¹⁹⁾ In other words, a low contribution limit not only increase the difficulty for a candidate to raise his own funds, it also raises the threshold of "noise" above which the candidate's speech must rise to be heard.

When one or more of these hurdles prevents candidates from communicating their platforms to the voting public, a unduly low contribution limit has the effect of truly endangering the foundation of our representative democracy.

V. Limits On Contributions To PACs And Parties Do Not Advance The State's Interest In Preventing Corruption Or At Least Do Not Advance It Narrowly.

The plurality opinion of CMA upheld a limitation on contributions to a single PAC.⁽²²⁰⁾ Because the only compelling interest recognized by the Supreme Court for restricting contributions is preventing the quid pro quo corruption that may result from large, individual contributions to candidates, the plurality opinion of CMA is constitutionally problematic when the government has prohibited an individual from making any contributions to a PAC. Indeed, the Supreme Court in NCPAC at least tacitly recognized the constitutional problem with such a prohibition:

The plurality [in CMA] emphasized in that case, however, that nothing in the statutory provision in question "limits the amount an unincorporated association or any of its members may independently expend in order to advocate political views," but only the amount it may contribute to a multicandidate [PAC].⁽²²¹⁾

The same concerns and effects on fundraising by candidates implicate the constitutionality of limits on contributions given to a political association. Buckley explained, "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidate and political committees from amassing the resources necessary for effective advocacy."⁽²²²⁾

This concern proved to be a reality in Hayes. In Hayes, past contribution data showed that prior to the imposition of limits, for Minnesota Citizens Concerned for Life Committee for State Pro-Life Candidates (a political association) between 25% and 33% of the total dollar value of its contributions came from contributions exceeding the new $100 limit.⁽²²³⁾ Assessing the impact, the court observed, "[i]t appears that the $100 limit would significantly reduce the ability of MCCLCSPC -- and thereby the collective ability of its individual contributors -- to provide financial support to candidates."⁽²²⁴⁾ In striking down the limit, the court pointed out that, "[a] $100 limit on contributions regulates too broadly by limiting the rights of association of relatively small contributors along with those of large contributors . . . [and thus,] is not narrowly drawn."⁽²²⁵⁾

Perhaps more importantly, the state has a less compelling interest in limiting contributions to political associations than for contributions to candidates. The reason is that political associations do not exercise legislative power. Thus, regardless of the size of a given contribution made to a political action committee, the committee, in turn, is still limited in what it can give to any particular candidate. In striking down a $200 limit to political action committees, one court recently articulated the reason as follows, "[t]here is also less of a danger of quid pro quo corruption, such as the sort one might presume from large contributions given directly to candidates, when a contribution is given to a PAC that does not itself wield legislative power."⁽²²⁶⁾

Under this rationale, limits on contributions to independent expenditure committees present a most compelling case for striking down limits due to lack of narrow tailoring. Independent expenditure committees, because of the definition of an "independent expenditure," can never give contributions to candidates. Nor can such a committee coordinate its expenditures with a candidate. It follows then, that there is little danger that a candidate will trade his vote in an exchange for independent expenditure activity that may or may not assist the candidate. It is worth repeating Buckley's observation about the relative usefulness of independent expenditures,

[unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate . . . not only undermines the value of the expenditure to the candidate, but also alleviates the danger than expenditures will be given as a quid pro quo for improper commitments from the candidate.⁽²²⁷⁾

One court has recently struck down a $500 limit on contributions to independent expenditure committees.⁽²²⁸⁾ This result was predicted by Justice Blackmun in his concurring opinion in California Medical Association v. FEC. In California Medical the Supreme Court upheld a $5,000 limit on contributions to a political action committee as a prophylactic measure (i.e., to prevent an individual from evading the $1,000 limit on direct contributions by channeling funds through a multicandidate PAC.⁽²²⁹⁾ Justice Blackmun explained that he would probably not have upheld such a limit upon independent expenditure committees:

I stress, however, that this analysis suggests that a different result would follow if [the contribution limit] were applied to contributions to a political committee established for the purpose of making independent expenditures, rather than contributions to candidates. By definition, a multicandidate political candidate . . . makes contributions to five or more candidates for federal office. Multicandidate political committees are therefore essentially conduits for contributions to candidates, and as such they pose a perceived threat of actual or potential corruption. In contrast, contributions to a committee that makes only independent expenditures pose no such threat.⁽²³⁰⁾

As a consequence, it can be argued easily that a statutory limit upon contributions to a committee that engages solely in making independent expenditures, can never be constitutionally justified.

VI. Contribution Limits Are Per Se Unconstitutional.

When the Supreme Court approved of federal contribution limits in Buckley, it did teach that a specific dollar level was not amenable to judicial micro-management. However, where differences become a matter of kind, rather than simply of degree, limits may be struck down. Limits take on a quality different in kind when they actually increase rather than decrease corruption, or while preventing corruption they are so onerous that they prevent candidates raising the money needed to get their message out to voters. Finally, it has been argued that contribution limits can never qualify as a narrowly drawn method of achieving the state's compelling interest.

A. Unduly Low Contribution Limits Will Not Advance The State's Interest In Reducing Corruption, But Will Actually Increase Corruption.

If the only constitutional justification for limiting one's First Amendment right to financially support a favorite candidate is the prevention of corruption or its appearance, then it follows, a fortiori, that contribution limits which actually increase corruption are per se unconstitutional. Unduly low limits, in fact, have the unintended consequence of promoting corruption in the form of contribution laundering. Some of the reasons for this phenomenon are obvious; other less so.

In the California ProLife Council PAC case, the defenders of Proposition 208's low state-wide limits pointed to San Diego as a poster child for effective $250 limits. For many years, San Diego has limited City council candidates from accepting more than $250 from any one person. In a fairly dramatic turn at trial, however, evidence was introduced that since the imposition of $250 limits, there has been a marked increase in contribution laundering.⁽²³¹⁾ The lure of contribution laundering is perhaps better understood in the context of one scenario evidenced at trial. One candidate raising funds for his campaign telephoned a real estate developer requesting a large contribution. The developer, having decided to make the large contribution, learned that he was limited to contributing $250. He then enlisted the assistance of his company's employees and the employees of a law firm he employed for advice. The various employees made individual $250 contributions to the candidate and were later reimbursed by the developer. The developer was eventually caught and charged with making illegal contributions. An investigator for the Fair Political Practices Commission (the state campaign watchdog agency) explained that contribution laundering was fairly easy to spot because of the large numbers of identical contributions with a common connection (i.e., same employer or same address) in favor of a common candidate over a narrow period of time. The investigator further testified that incidents of contribution laundering were much more common in those California cities like San Diego that had enacted low contribution limits than in other California cities.⁽²³²⁾ Anecdotal evidence likewise suggests that contribution laundering on the federal level has increased steadily as inflation continuously eats away at the value of a $1,000 contribution reducing its size in real dollars.

This effect is predictable and understandable as scholars have pointed out. "It is naive to think that when the government is heavily involved in virtually every aspect of economic life in the country . . . people affected by government actions will accept whatever comes without some kind of counterstrategy."⁽²³³⁾ In other words, because the level of government expenditures continues to increase, the competition for government transfers of wealth will naturally tend to increase campaign expenditures, and if those who are seeking government benefits are foreclosed from legitimate avenues of rent-seeking, than there results an increased risk of campaign payments taking less desirable forms.⁽²³⁴⁾ As a result of the incentives for donating to candidates who control the large stream of government payments (whether in the form of contracts or regulatory benefits) and the benefits of putting or keeping in office those politicians who value similar ideals, restricting contributions is like squeezing a balloon. The emerging shape of campaign participation when legitimate forms of participation are squeezed will likely result in more covert participation. "There is always the possibility that limiting private contributions will simply increase the value of a more corrupting alternative: outright bribery."⁽²³⁵⁾ At the same time, these less desirable forms of political influence seeking make it more difficult for voters to observe and monitor all of a candidate's support and alliances. If sunshine (in the form of accurate campaign reporting and disclosures) is the best antiseptic, then the darkness attending contribution laundering and bribery will facilitate sepsis of the body politic.

The overarching problem with contribution laundering is that at the end of the day, political outcomes changed remain changed. In other words, where there are powerful incentives to see a particular candidate win an election, winning is everything. Once won, the office remains the victor's, regardless of irregularities in contributors' conduct. Thus, a contributor may be willing to engage in contribution laundering to ensure his favorite candidate succeeds because: (a) he may never be found out; (b) even if he is found out, the penalties are likely to be monetary and the "risk" thus worth the "reward"; and more importantly (c) his candidate will remain in office. Rarely, are elections unwound. More rarely are officeholders forced to re-run for their seats because of illegal campaign contributions made. Thus, the winner-take-all context in which low contribution limits operate exacerbates the tendency toward campaign corruption in the form of illegal contribution laundering.

Assuming it could be proven, as it was for San Diego, that low contribution limits actually increased the occurrences of corruption, such limits should be per se unconstitutional. Since preventing corruption or the appearance of corruption is the only justification recognized by the courts for limiting the First Amendment rights of contributors, if unduly low limits not only do not prevent but actually increase corruption, then it cannot be said that the limits are narrowly drawn to achieve the government's compelling interest. Put differently, if limits cause an increase in corruption then they can no longer be justified as necessary to prevent corruption. If limits do not prevent corruption, then they have no raison d'etre.

B. Contribution Limits Which Are Necessary to Prevent Actual Corruption May Still Be So Low that Candidates Are Prevented From Getting Out Their Message and Thus Are Unconstitutional

Wholly apart from the question of whether a contribution limit is so low as to become different in kind from the $1,000 limit acknowledged in Buckley, is the question of whether a candidate can still manage to gather enough funds to get his campaign message out. It is a separate test of constitutionality. In other words, to pass constitutional muster, a donation limit must be both, similar in kind to Buckley's $1,000 and high enough that candidates can raise sufficient funds. Failure under either test dooms a contribution limit.

The duality is necessary because a system fostering non-corrupt campaign financing must not, through impediments to fundraising, leave the electorate uninformed about the positions of candidates, the merits of their platforms, or for that matter the identity of the candidates running. To have the hope of an informed electorate, candidates must be able to focus campaign communications on more than simply achieving name recognition.⁽²³⁶⁾ Otherwise, elections will devolve into uncounseled and undifferentiated incumbent reelections or reactionary challenger victories. Democracy would languish.

C. Contribution Limits Are Not Narrowly Tailored As A Matter Of Law.

In Colorado Republican Federal Campaign Committee v. Federal Election Commission,⁽²³⁷⁾ Justice Thomas observed that simply because a few individuals might corrupt the political process by making large contributions, this does not warrant preventing many more individuals from making contributions that will not.⁽²³⁸⁾ He also noted that simply because bribery laws may not eliminate all instances of corruption, this does not mean that contribution limits are narrowly tailored; similarly, that other means of expression remain open, also does not mean that contribution limits are narrowly tailored. Id. Under Justice Thomas' approach, then, contribution limits are per se unconstitutional.

VII. The FECA's Contribution Limits Are Unconstitutional.

Various contribution limit provisions contained in the FECA now appear to be ripe for challenge. Among them are: (a) the $1,000 limit on individual contributions to candidates; (b) the limits on contributions to political action committees; (c) the limits on contributions to independent expenditure committees, and (d) the limits on contributions to political parties.

A. The $1,000 Limit on Individual Contributions to Candidates

First, of course, is the $1,000 individual contribution limit found in §441a(a)(1).⁽²³⁹⁾ The ravages of inflation over the two and one-half decades since its passage has severely diminished the political message-buying power of a $1,000 contribution. It suffers from the same maladies that low state contribution limits suffer from, as discussed earlier. And, like its state counterparts, as inflation eats away at its value, the $1,000 limit is pressuring contributors to find other ways of contributing. The result has been an explosion in independent expend