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A Decision to Overturn Austin Would Not Only Radically Alter the Conduct

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A Decision to Overturn Austin Would Not Only Radically Alter the Conduct No. 11-1179 IN THE Supreme Court of the United States AMERICAN TRADITION PARTNERSHIP, INC., ET AL., Petitioners, v. STEVE BULLOCK, ATTORNEY GENERAL OF MONTANA, ET AL., Respondents. On Petition for a Writ of Certiorari to the Supreme Court of the State of Montana BRIEF OF AMICI CURIAE THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW AND CONSTITUTIONAL LAW PROFESSORS IN SUPPORT OF RESPONDENTS J. ADAM SKAGGS Counsel of Record MICHAEL WALDMAN MIMI MARZIANI IAN VANDEWALKER DAVID EARLEY BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW 161 Avenue of the Americas New York, New York 10013 (646) 292-8331 [email protected] May 18, 2012 Counsel for Amici Curiae TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... iii INTEREST OF AMICI CURIAE ................................ 1 SUMMARY OF ARGUMENT..................................... 1 ARGUMENT ............................................................... 3 I. WHETHER UNCOORDINATED POLITICAL SPENDING CAN GIVE RISE TO REAL OR APPARENT CORRUPTION IS A QUESTION OF FACT, NOT LAW. ........................................... 3 A. Montana has dual compelling interests in preventing corruption and the appearance of corruption. .................................................... 3 B. Whether and how independent spending gives rise to corruption or its appearance are questions of fact, not law. ......................... 5 II. SPENDING BY INDEPENDENT GROUPS CAN GIVE RISE TO CORRUPTION AND PUBLIC PERCEPTIONS OF CORRUPTION. .... 8 A. Citizens United has been extended to create groups that are inextricably connected with candidate campaigns, but allowed to solicit and accept unlimited contributions. .................................................... 9 B. Disproportionate spending by independent groups has given rise to concerns about corruption and its appearance. ...................... 19 CONCLUSION .......................................................... 29 APPENDIX: LIST OF AMICI CURIAE ................. A-1 ii TABLE OF AUTHORITIES Page(s) CASES Ariz.Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) ............................. 3 Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 132 S. Ct. 1087 (2012) ................................... 4 Buckley v. Valeo, 424 U.S. 1 (1976) ............... 1, 3, 4, 5 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009) ................................................................ 4, 25 Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................. passim Crawford v. Marion County Election Board, 553 U.S. 181 (2008) ................................................ 4 Doe v. Reed, 130 S. Ct. 2811 (2010)........................... 4 FEC v. Beaumont, 539 U.S. 146 (2003)..................... 4 FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (1996) .............................................. 11 FEC v. Nat’l Conservative PAC, 470 U.S. 480 (1985) ...................................................................... 5 First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978) ...................................................................... 5 Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 (9th Cir. 2010) ........... 10 McConnell v. FEC, 540 U.S. 93 (2003) ............. passim N.C. Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008) ......................................................... 8 Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................... 4 iii Randall v. Sorrell, 548 U.S. 230 (2006) ..................... 6 Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ............ 11 Shays v. FEC, 528 F.3d 914 D.C. Cir. 2008) ........... 11 SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ................................................. 7, 10 Thalheimer v. San Diego, 645 F.3d 1109 (9th Cir. 2011) ....................................................... 10 U. S. Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973)................................. 5 Wis. Right to Life State PAC v. Barland, 664 F.3d 139 (7th Cir. 2011) ................................ 10 STATUTES MONT. CODE ANN. § 13-35-227 ................................... 2 ADMINISTRATIVE MATERIALS FEC, Advisory Opinion, 2010-11, July 22, 2010 ..... 11 FEC, Comment by Americans for a Better Tomorrow, Tomorrow, 2011-23 (2011) ................. 12 FEC, Request by American Crossroads, 2011-23 (2011) .................................................................... 12 OTHER AUTHORITIES Aaron Blake, Adelsons Give Gingrich Super PAC Another $5 Million, WASH. POST, THE FIX (Apr. 23, 2012), http://www.washingtonpost.com/blogs/the- fix/post/adelsons-give-gingrich-super-pac-another- 5-million/2012/04/23/gIQAlqNmbT_blog.html ...... 9 Albert R. Hunt, Super PACs Fuel a Race to the Bottom, INT’L HERALD TRIB., Mar. 5, 2012 .......... 25 iv Andy Kroll, Candidates and the Totally Unrelated Super-PACs That Love Them, MOTHER JONES (Jan. 20, 2012), http://www.motherjones.com/mojo/ 2012/01/stephen-colbert-citizensunited-super-pac ............................................................................... 14 Anupama Narayanswamy, Presidential Campaign Donors Moving to Super PACs, SUNLIGHT FOUND. BLOG (Apr. 26, 2012), http://reporting.sunlightfoun dation.com/2012/maxed-out-donors/ .................... 23 Are Super PACs Living Up to Supreme Court’s Intentions?, PBS NEWSHOUR (Jan. 5, 2012), http://www.pbs.org/newshour/bb/politics/jan- june12/superpac_01-05.html ................................ 26 Ashley Killough, Gingrich: Romney Didn’t Deserve Congrats, CNN.COM (Feb. 3, 2012), http://politicalt icker.blogs.cnn.com/2012/02/03/gingrich-romney- didnt-deserve-congrats/ ........................................ 20 BRENNAN CENTER FOR JUSTICE, NATIONAL SURVEY: SUPER PACS, CORRUPTION, AND DEMOCRACY (2012), http://www.brennancenter.org/Super_PAC_ survey .............................................................. 28, 29 Brian Montopoli, Poll: Most Want Limits on Campaign Spending, CBS NEWS (Jan. 18, 2012), http://www.cbsnews.com/8301-503544_162- 57361428-503544/poll-most-want-limits-on- campaign-spending ............................................... 28 Ctr. for Responsive Politics, 2012 Outside Spending, by Super PACs, OPENSECRETS.ORG, http://www.op ensecrets.org/outsidespending/summ.php?cycle=20 12&chrt=V&disp=O&type=S (last visited May 8, 2012) ...................................................................... 19 v Ctr. for Responsive Politics, Donors to Priorities USA Action, 2012, OPENSECRETS.ORG, http://www. opensecrets.org/outsidespending/contrib.php?cmte =C00495861&type=A&cycle=2012 (last visited May 8, 2012) ......................................................... 22 Ctr. for Responsive Politics, Outside Spending, Summary, OPENSECRETS.ORG, http://www.opensec rets.org/outsidespending/ index.php (last visited May 8, 2012) ......................................................... 19 Damla Ergun, Seven in 10 Would Send Super PACs Packing, ABC NEWS (Mar. 13, 2012), http://abcnew s.go.com/blogs/politics/2012/03/seven-in-10-would- send-super-pacs-packing ...................................... 28 Dan Hartranft, Super PAC Spending Boosts Santorum, OPENSECRETS.ORG (Feb. 16, 2012), http://www.opensecrets.org/news/2012/02/super- pac-spending-boosts-santorum.html .................... 17 Editorial, Corrupting Super PACs, CHATTANOOGA TIMES FREE PRESS, Feb. 25, 2012 ......................... 27 Editorial, Curbs on the ‘Super PACs,’ L.A. TIMES, July 23, 2011 ......................................................... 27 Editorial, Following the Money Won’t Be Easy in 2012, PRESS DEMOCRAT (Santa Rosa, Calif.), Dec. 8, 2011 ........................................................... 27 Editorial, Money Wins Elections, PHILA. INQUIRER, Nov. 21, 2011 ........................................................ 27 Editorial, Not So Super, RALEIGH NEWS & OBSERVER, Oct. 14, 2011 ......................................................... 27 Editorial, Our View: Presidential Race Not the Place for Secret Donors, USA TODAY, Aug. 22, 2011 .... 27 vi Editorial, Super PACs Are Overwhelming the Political Process, FT. WORTH STAR-TELEGRAM, Jan. 28, 2012 ......................................................... 27 Editorial, The Broken System of Campaign Finance, SAN DIEGO UNION-TRIBUNE, Dec. 6, 2011 ............ 27 Editorial, The Campaign Jungle, N.Y. TIMES, Nov. 13, 2011 ........................................................ 27 Editorial, The Power of Super PACs, WASH. POST, Jan. 10, 2012 ......................................................... 27 Eliza Newlin Carney, Close Super PAC Ties Draw Ire, ROLL CALL (Dec. 15, 2011), http://www.rollcall. com/issues/57_75/Close-Super-PAC-Ties-Draw-Ire- 211067-1.html ....................................................... 16 Fredreka Schouten & Christopher Schnaars, Reports Show Hard-to-Track Donors Dominate Outside Giving, USA TODAY, Apr. 22, 2012 ...................... 24 Fredreka Schouten et al., Big-bucks Donations to Super PACs Keep the GOP Race Going, USA TODAY, Mar. 22, 2012 ........................................... 24 Fredreka Schouten, Outsider Campaign Spending Linked to GOP Candidate Surges, USA TODAY, Dec. 19, 2011 ......................................................... 15 Greg Giroux, Super-PAC Ads Dominate Republican Race in Alabama, Mississippi, BLOOMBERG BUSINESSWEEK (March 13, 2012), http://www.busin essweek.com/news/2012-03-12/super-pacs- dominate-republican-ads-aired-in-alabama- mississippi-primaries ..........................................
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