RECONSTITUTING THE BUCKLEY FRAMEWORK: A RESPONSE TO

THE APPEARANCE AND REALITY OF QUID PRO QUO CORRUPTION

Michael T. Morley
Professor Christopher Robertson and his co-authors (collectively, with apologies to the
co-authors, Robertson) recently made a draft available on SSRN entitled, The Appearance
and Reality of Quid Pro Quo Corruption: An Empirical Analysis, filling a much-needed void in
the literature. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2740615. Their insightful
piece raises numerous important points about both campaign finance jurisprudence and the legal
definition of bribery that merit further analysis, but this post will focus on their main thesis.
They conducted empirical research using mock grand juries and petit juries to determine the
types of conduct that members of the public, attempting to follow realistic jury instructions,
believe constitutes bribery. Most notably, Robertson discovered that mock grand jurors were
exceedingly willing to indict both a fictitious officeholder and CEO of a corporation for what
amounts to an independent expenditure.
Robertsons paper reveals a fundamental tension at the heart of campaign finance
jurisprudence. The Supreme Court has held that a person has a fundamental constitutional right
to engage in, and pay for, unlimited amounts of political speech (i.e., independent
expenditures), because such speech is at the heart of the First Amendment. Buckley v. Valeo,
424 U.S. 1, 44-45, 48 (1976) (per curiam). Restrictions or prohibitions on the fundamental right
to make independent expenditures are subject to strict scrutiny. Id. at 44-45. A legal provision
may survive such scrutiny only if the Government can establish that it is narrowly tailored to
achieving a compelling governmental interest.
The Court has recognized that combatting both actual quid pro quo corruption and the
appearance of such corruption are compelling interests that can warrant restricting First
Amendment rights. Id. at 26; see also Citizens United v. FEC, 558 U.S. 310, 359 (2010).
Herein lies the problem. On the one hand, the Court repeatedly has invalidated restrictions on
independent expenditures because it has held that they cannot give rise to a threat of actual or
apparent corruption. In a much-quoted passage from Buckley, 424 U.S. at 47, the Court
declared, The absence of prearrangement and coordination of an expenditure with the candidate
or his agent not only undermines the value of the expenditure to the candidate, but also alleviates
the danger that expenditures will be given as a quid pro quo for improper commitments from the
candidate.
On the other hand, Robertsons article provides strong empirical evidence that most
people do regard independent expenditures as giving rise to quid pro quo corruption, and are
quite ready to infer the existence of illegal implied-in-fact agreements, even from ordinary
political activities in which nearly all politicians and their supporters engage. If one takes the
Buckley Courts framework seriously, Robertsons analysisparticularly if supplemented by
other such studiesarguably provides a basis for limiting or prohibiting independent
expenditures. Indeed, Robertsons article offers a path for overturning Citizens United without
having to revisit the Courts legal interpretations of the First Amendment.

I agree with Buckleys conclusion that restrictions or prohibitions on independent

expendituresat least from U.S. persons or entities, cf. Bluman v. FEC, 800 F. Supp. 2d 281
(D.D.C. 2011), affd 132 S. Ct. 1087 (2012) (mem.)are unconstitutional. In my view,
however, Buckley reached the correct result for the wrong reason; Buckleys analysis suffers
from at least three major shortcomings. First, Buckley suggests that even pure political
expression may be limited or prohibited if it might lead to an appearance of corruption. For
example, under Buckleys framework, taken at face value, it might be constitutional for the
government to prohibit prominent or popular people from giving endorsements, on the grounds
that such endorsements are particular valuable to candidates (even based on the value of the
resulting earned media alone) and might potentially be part of a quid pro quo transaction. Cf.
Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc) (Berzon, J., concurring).
Alternatively, if Plutocrats United is read and adored by millions of people and drives voters to
support candidates whose campaigns do not depend on major outside financial interestsBernie
Sanders and Donald Trump?perhaps Professor Rick Hasens work might be prohibited due to
the potential for apparent corruption.
In my view, Buckleys declaration that independent expenditures cannot lead to
corruption was neither analytically sound nor necessarily empirically true, but rather an ad hoc
addition to the opinion designed to avoid such absurd results. Rather than claiming that
independent expenditures cannot be limited because they cannot lead to corruption, Buckley
instead should have held that corruption is not a basis for prohibiting independent expenditures,
precisely because they constitute core political speech at the heart of the First Amendment. Cf.
Citizens United, 558 U.S. at 349 (If the First Amendment has any force, it prohibits Congress
from fining or jailing citizens, or associations of citizens, for simply engaging in political
speech.). The Government should not be permitted to restrict or limit a persons political
expression, however widely those communications may be disseminated or broadcast, simply
because a candidate or officeholder might be grateful for it, unilaterally choose to exercise their
official power in a particular manner in response, or based on the unavoidable possibility that
such speech might constitute one prong of a quid pro quo arrangement. If corruption is a
constitutionally valid basis for regulating speech, then the Government has the strongest interest
in regulating the most potentially effective speech. Conversely, whatever speech is least likely to
be effective, and therefore carries the least potential for corruption, would be entitled to maximal
constitutional protection. Such a system renders the First Amendment hollow.
Second, more broadly, the Buckley framework purports to distinguish constitutionally
protected activity from corruption that the government may validly combat, but the Courts
campaign finance jurisprudence does not align well with some of the Courts interpretations of
federal bribery statutes. For example, Evans v. United States, 504 U.S. 255, 268 (1992), held
that a government official violates the federal extortion statute simply by obtain[ing] a payment
to which he was not entitled, knowing that the payment was made in return for official acts,
even in the absence of any quid pro quo agreement. This holding appears to let the Government
prosecute political contributions that FECA affirmatively permits, and that Buckley holds are
constitutionally protected, simply because they were made in response to, or to signify
endorsement of, the recipients official acts. Cf. McConnell v. FEC, 540 U.S. 297 (2003)
(opinion of Kennedy, J.) (It is well understood that a substantial and legitimate reason . . . to
make a contribution to[] one candidate over another is that the candidate will respond by

producing those political outcomes the supporter favors. Democracy is premised on

responsiveness.). Evans also could be read broadly to suggest that a jury reasonably may infer
the existence of an illegal quid pro quo arrangement from the mere fact of a campaign
contribution, even in the absence of any express promises. But see McCormick v. United States,
500 U.S. 257, 271-72 (1991).
Third, much like St. Anselms ontological argument for the existence of God, Buckley
rests its conclusion that independent expenditures cannot give rise to an appearance of corruption
by simply defining any problems out of existence. As noted above, Buckley holds that an
independent expenditure cannot give rise to quid pro quo corruption because, by definition, such
an expenditure may not involve any prearrangement or coordination . . . with the candidate.
424 U.S. at 47; see also Citizens United, 558 U.S. at 360 (By definition, an independent
expenditure is political speech presented to the electorate that is not coordinated with a
candidate.). Under that reasoning, the term contribution can be redefined as any gift of
anything of value that does not involve a bribe or other quid pro quo arrangement. The
government would then likewise lack a constitutionally valid interest in limiting contributions
because, by definition, they would not raise a risk of corruption.
Some of these concerns, of course, extend beyond those implicated by Robertsons
article. But his evidence brings the issue to a head. If independent expenditures are proven to
create an appearance of corruption, then the Buckley framework appears to allow the government
to regulate or even prohibit them. Yet Buckley and four decades of subsequent campaign finance
jurisprudence flatly reject virtually any limits or prohibitions on independent expenditures. See,
e.g., 424 U.S. at 39; FEC v. Natl Conservative Political Action Comm., 470 U.S. 480, 496
(1985); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 614 (1996); Citizens
United, 558 U.S. at 365. I would avoid the entire problemand moot the empirical evidence
that Robertson and his colleagues so carefully gatheredby simply declaring that the possibility
or even appearance of corruption is not a constitutionally sufficient basis for limiting the amount
of independent expenditures a person or entity may make. Indeed, I believe that, throughout
much of constitutional law, the Court has been far too willing to recognize various government
interestsmost of which are admittedly importantas sufficiently compelling to warrant
trumping individual rights for purposes of strict scrutiny. Under my proposed approach,
combatting actual and apparent corruption still would be recognized as sufficiently important
goals to maintain the constitutionality of base contribution limits under the exacting
intermediate scrutiny Buckley requires. 424 U.S. at 16. And actual quid pro quo transactions,
whether involving contributions, independent expenditures, or personal bribes, would still be
prosecuted under federal bribery and extortion laws.
For more details about the sufficiency of the factual underpinnings of campaign finance
jurisprudence, as well as the Courts frequent failure to pay adequate attention to those facts,
please see my piece forthcoming in the Florida State University Law Review, entitled,
Contingent Constitutionality, Legislative Facts, and Campaign Finance Law, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2722584 (Jan. 26, 2016); see also De Facto
Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional
cases, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2728724 (Feb. 6, 2016).