Today, a group of empirical researchers submitted an amicus brief in Lieu v. Federal Election Commission, the case that could end super PACs. The brief by Professor Christopher Robertson (Associate Dean for Research and Innovation and Professor of Law at the University of Arizona), Professor Kelly Bergstrand (Assistant Professor of Sociology at the University of Texas at Arlington), and researcher D. Alexander Winkelman describes their peer-reviewed research demonstrating that large contributions to super PACs create an appearance of quid pro quo corruption.
In the 2010 SpeechNow v. FEC decision that created super PACs, the U.S. Court of Appeals for the D.C. Circuit recognized that the “appearance of corruption” is a valid basis for campaign finance regulation. However, the court stated that “contributions to groups that make only independent expenditures … cannot corrupt or create the appearance of corruption.” As the researchers explain:
Amici’s empirical research strongly suggests otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in fact create the appearance of quid pro quo corruption. …
At the heart of this case is an empirical question: whether contributions to independent expenditure organizations give rise to an appearance of quid pro quo corruption. Through two investigations, Amici have developed a systematic and reliable approach to answering this question, and the answer appears to be yes.
Their research consisted of two “vignette-based experiments” in which ordinary Americans were recruited to serve as “mock jurors” and determine whether various campaign finance fact patterns met the standard for quid pro quo corruption under the federal bribery statutes. The first experiment involved a grand jury simulation involving a corporation that made a $50,000 contribution to a 501(c)(4) (a political spending vehicle similar to a super PAC) in connection with a legislative favor. As the brief explains:
[B]oth the corporation’s CEO and the representative were charged under the federal bribery statute. The simulation materials included a recorded charge from a federal judge, excerpts from the federal grand juror manual, and realistic indictments and true bill forms. An experienced prosecutor presented the case along with live actors portraying the witnesses, and study participants were allowed to question the witnesses live. After being exposed to this stimulus, the group of 45 mock jurors were broken into three grand juries of fifteen each. … Across all 45 grand jurors, 73% voted to indict the defendants.
The second experiment used a much larger (1,276 jury-eligible individuals) sample in an online experiment with the same basic fact pattern but with slight variations. The mock jurors received “a welcome and preliminary instructions by a judge, a statement of undisputed facts, closing arguments by both the prosecutor and the defense attorney, and jury instructions adapted from the pattern jury instructions for the federal crime of bribery.” They were then asked to fill out a verdict form on the charge of bribery. The experimenters tested several different variations of the fact pattern, but the key point is that overwhelming majorities (77% and 84%) voted to convict. Furthermore, this experiment found that it made “little difference whether the ‘quid’ was a direct contribution to a campaign or a contribution to an independent expenditure organization like a [super PAC]—in both versions, the contribution gave rise to the appearance of an illegal quid pro quo arrangement.”
What it means
The researchers are careful to note that the importance of their research “does not depend on whether the Court agrees with the assessments of the grand and petit jurors that the facts as presented in [these] experiments constitute bribery.” Rather, the important point is the appearance of corruption:
If, as appears to be the case, a contribution to a [super PAC] can give rise to the same appearance of corruption as a direct contribution to a campaign account, then the Court’s longstanding ‘appearance of corruption’ rationale for campaign finance regulation would appear to justify regulation of contributions to independent expenditure organizations as well as regulation of direct contributions to candidates and candidate leadership PACs. … What matters for purposes of this rationale is public perception, and the protection of democratic legitimacy.
In other words, the point is not whether the fact patterns actually met the legal test for bribery; the point is that, to groups of Americans similar to actual federal jury pools, they appeared to meet the legal test for bribery. And if a fact pattern would lead ordinary Americans to indict and convict on a charge of bribery, it is absurd to say that it does not even create the “appearance” of corruption.
The research presented in this amicus brief (which is consistent with public opinion polls regarding the appearance of corruption from large super PAC contributions) confirms that large contributions to super PACs can, in fact, create the appearance of corruption.
We appreciate the helpful contribution made by Professor Robertson and his colleagues.