Amicus Brief in Dinner Table Action, et al. v. William J. Schneider, et al.

The district court’s conclusion, following that of the D.C. Circuit and other courts of appeals, is based on a false premise: because limits on independent expenditures by political action committees (“PACs”) violate the First Amendment, restrictions on contributions to PACs that make independent expenditures (“super PACs”) must also violate the First Amendment.

This purported syllogism is a non sequitur; its conclusion does not follow from its premise. Rather, this reasoning contradicts Supreme Court campaign finance decisions beginning with Buckley v. Valeo, 424 U.S. 1 (1976), which sharply distinguish between contributions and expenditures, a distinction the D.C. Circuit failed to recognize. Contributions have less expressive value and more potential for quid pro quo corruption than expenditures, so limits on contributions are subject to less exacting scrutiny than limits on expenditures. The Supreme Court has repeatedly upheld limits on contributions to candidates, political parties, and PACs, while simultaneously striking down limits on expenditures by those same groups.

The principles distinguishing contributions from expenditures apply equally to super PAC contributions. As in Buckley, super PAC contributions have less expressive value than super PAC expenditures. Meanwhile, although super PAC expenditures must be independent of the candidate, nothing makes super PAC contributions independent. As in Buckley, such contributions have the potential for quid pro quo corruption, in fact and in appearance. Citizens United’s ruling invalidating expenditure limits for super PACs does not support invalidating contribution limits for super PACs.

Besides conflicting with Supreme Court precedent, the district court’s conclusion that contributions to super PACs cannot lead to corruption is simply false. Since the D.C. Circuit struck down limits on super PAC contributions in 2010, super PAC contributions have exploded, leading to many examples of actual and apparent corruption, all based on massive super PAC contributions. As just one example, former New Jersey Senator Robert Menendez was charged with corruption based on a $600,000 contribution to his super PAC. The public is sickened by this, as repeated polls demonstrate. In the real world, unlimited super PAC contributions create a risk of quid pro quo corruption and its appearance. Legislatures are entitled to place reasonable limits on such contributions consistent with the First Amendment.

Read the full Amicus Brief