Professor Christopher Robinson and his co-authors’ recent draft, “The Appearance and Reality of Quid Pro Quo Corruption: An Empirical Analysis,” discusses their empirical studies which reveal, among other things, that mock grand jurors are exceedingly willing to indict a fictitious officeholder and CEO of a corporation for what amounts to an independent expenditure. Their paper reveals a fundamental tension at the heart of campaign finance jurisprudence. The framework set forth in Buckley v. Valeo suggests that, if independent expenditures are proven to create an appearance of corruption, then the Government may 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. Robinson’s article brings this conflict to a head: empirical evidence that independent expenditures give rise to an appearance of corruption could force the Court to approve restrictions or even prohibitions on independent expenditures.
This Response instead recommends avoiding the entire problem implicated by Robinson’s research, by revising Buckley‘s reasoning while maintaining its ultimate conclusions. The Court should hold 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. In the absence of actual quid pro quo corruption, pure speech should not be proscribed simply because a candidate or officeholder might unilaterally choose to exercise their official discretion favorably to the speaker in response, or the public might believe such reciprocation could occur.
The issues discussed in both Robinson’s article and this Response concerning the factual underpinnings of the Court’s campaign finance jurisprudence are also analyzed in greater depth in “Contingent Constitutionality, Legislative Facts, and Campaign Finance Law,” Fla. St. U. L. Rev. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2722584.