[EL] "Appearance of Corruption" makes an appearance at the Supreme Court

[Barnaby Zall]

Now that the procession of posts on payments to porn stars has paused, let me mention a different kind of contribution limit question currently before the Supreme Court (following up on Rick's post on the Supreme Court asking for a response in Zimmerman: https://electionlawblog.org/?p=100682).


There's a very interesting issue hidden in two of the contribution limit cases now pending on Petitions for cert: Zimmerman, the Austin, Texas, contribution limit case No. 18-93, and Jim Bopp's Lair v. Mangan, No. 18-149, the Montana contribution limit case. Those cases cover several issues surrounding how a government justifies its claim that contribution limits prevent corruption, but they also cover a related but different issue: the "appearance of corruption." 


The "appearance of corruption" portion of the anticorruption principle is intended to prevent the loss of confidence in the integrity of the election system, but with public opinion polls showing that 85% of Americans already believe that elected officials provide benefits to their donors, is that still a valid constitutional interest sufficient to limit First Amendment-protected rights of political speech and association? 


What, exactly, is the "appearance of corruption" and how does a government show it to justify a campaign contribution limit? The Circuits are split, especially since Citizens United and McCutcheon; some Circuits say that using public opinion polls and campaign consultants' testimony about what the public thinks is enough. Other Circuits say that there must be some evidence of actual quid pro quo corruption to justify or substantiate the public's opinion in order for a government to limit contributions. Zimmerman says no evidence is necessary; Lair says it is enough to show a "risk" of corruption, even if the lower court expressly found that corruption was non-existent and not possible. Both cases test the limits of the requirement that the government's justification not be "mere conjecture." 


In Supreme Court terms, the cases ask whether the more recent quid pro quo corruption tests of Citizens United and McCutcheon control the older, more expansive tests of "appearance of corruption" from McConnell and Shrink Missouri Government PAC. Is showing an "appearance of influence or access," which has been held not to be corruption by Citizens United and McCutcheon, enough to say that the public opinion justifies a finding of an "appearance of corruption?" 


I filed two briefs this week (one with the able assistance of Allen Dickerson and his staff from the Institute for Free Speech) dealing with the "appearance of corruption" in these two cases. For more on the briefs and the arguments behind them, please see this Litigation page at Vox PPLI, the blog of the Public Policy Legal Institute:  https://publicpolicylegal.com/litigation/appearance-of-corruption/. 


Barnaby Zall 
Law Office of Barnaby Zall
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Friday Harbor, WA 98250
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