Shrink Missouri Government PAC v. Adams

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 98-2351
_____________

Shrink Missouri Government PAC, a *
political action committee; Zev David *
Fredman, *
*
Appellants, *
*
v. *
*
Richard Adams, in his official capacity *
as a Member of the Missouri Ethics *
Commission; Patricia Flood, in her *
official capacity as a Member of the *
Missouri Ethics Commission; Robert *
Gardner, in his official capacity as a *
Member of the Missouri Ethics * Appeal from the United States
Commission; Ervin Harder, in his * District Court for the
official capacity as a Member of the * Eastern District of Missouri
Missouri Ethics Commission; John *
Howald, in his official capacity as *
Chairman of the Missouri Ethics *
Commission; Elaine Spielbusch, in her *
official capacity as a Member of the *
Missouri Ethics Commission; *
Jeremiah W. Nixon, in his official *
capacity as Missouri Attorney General; *
Robert P. McCullough, in his *
official capacity as St. Louis County *
Prosecuting Attorney, *
*
Appellees, *
*
Joan Bray, *
*
Intervenor on Appeal, *
*
-------------------- *
*
Common Cause, *
*
Amicus Curiae. *
_____________

Submitted: August 21, 1998
Filed: November 30, 1998
_____________

Before BOWMAN, Chief Judge, ROSS and JOHN R. GIBSON, Circuit Judges.
_____________

BOWMAN, Chief Judge.

Shrink Missouri Government PAC and Zev David Fredman (collectively, SMG)
appeal from the decision of the District Court granting summary judgment to members
of the Missouri Ethics Commission, Missouri Attorney General Jay Nixon, and St.
Louis County Prosecuting Attorney Robert P. McCullough1 (collectively, the State) on
SMG's challenge to certain provisions of Missouri's campaign finance law. We reverse
and remand.

1
Although counsel for the prosecuting attorney spells the name of his client
differently, we use the spelling as it appeared in the original complaint and as it still
appears in the caption of this case.

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 I.

In July 1994, the Missouri legislature, by enacting Senate Bill 650 (SB650),
adopted certain amendments to the state campaign finance law that, among other
things, restrict the amount of campaign contributions that persons can make to
candidates for public office. The limits were to become effective on January 1, 1995.
In November 1994, the electorate approved Proposition A, a ballot initiative that
imposed even more restrictive contribution limits than those contained in SB650.
Proposition A became effective immediately upon voter approval. In December 1995,
this Court held that the Proposition A limits on campaign contributions violated the
First Amendment. See Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), cert. denied, 518
U.S. 1033 (1996).2 At that time, the limits of SB650 became effective.

Under the provisions of SB650 challenged here, "the amount of contributions
made by or accepted from any person other than the candidate in any one election shall
not exceed" $1,075 to candidates for governor, lieutenant governor, secretary of state,
state treasurer, state auditor, or attorney general, or for any office where the population
of the electoral district is 250,000 or more; $525 to candidates for state senator, or for
any office where the population of the electoral district is 100,000 or more; and $275
to candidates for state representative, or for any office where the population of the
electoral district is less than 100,000. Mo. Rev. Stat. § 130.032.1 (Supp. 1997) (as
amended early in 1998 by the Missouri Ethics Commission to account for inflation, see
Mo. Rev. Stat. § 130.032.2 (Supp. 1997)).

2
We did say in Carver that "we generally accept the limits established by the
legislature." 72 F.3d at 641. But even if that comment could be construed to mean that
the Court believed the SB650 limits to be constitutional (an excessively broad reading,
we think), it is obiter dictum and is not binding on the Court in this case.

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 SMG, a political action committee organized and doing business in Missouri, and
Fredman, a resident of and registered voter in Missouri and an unsuccessful candidate
for the Republican party's nomination for state auditor this election cycle, filed suit
claiming that the limits violate their First Amendment rights of free speech and
association. The parties filed cross motions for summary judgment; the District Court
denied SMG's motions for summary judgment and for injunctive relief, and granted the
State's summary judgment motion. SMG filed a notice of appeal, and on July 27, 1998,
we granted SMG's motion for an injunction against enforcement of the campaign
contribution limits of SB650 pending appeal.

II.

We first address a question initially presented in the last few pages of the State's
brief. The State claims that SMG and Fredman lack standing to challenge these
contribution limits. We take up the question as our first matter of business, because we
lack jurisdiction to entertain the appeal if both SMG and Fredman are without standing.

The State asserts that the injuries alleged are "contrived," "conjectural," and
"hypothetical." Brief of Appellees at 49, 50. We disagree. The State cannot make a
persuasive argument that SMG and Fredman are not and have not been harmed by the
limits imposed on campaign contributions by SB650. See Shrink Mo. Gov't PAC v.
Adams, No. 98-2351, Order at 3-4 (8th Cir. July 27, 1998) (order granting motion for
injunction pending appeal). The only question, as we see it, is whether Fredman
continues to have standing despite his loss as a candidate for statewide office in the
August primary election. We hold that he does, as the State declined at oral argument
to assure the Court that no recourse would be taken against those who, like Fredman,
accepted campaign contributions in excess of the SB650 limits after July 27, 1998 (the
date we ordered an injunction pending appeal), should the summary judgment be
affirmed.

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 We hold that SMG and Fredman have standing to continue their challenge to the
provisions of SB650 here at issue.

III.

We proceed now to the merits, reviewing the decision to grant summary
judgment de novo. The question before us is straightforward: do the SB650 limits on
political campaign contributions violate SMG's and Fredman's First Amendment rights
of free speech and association?

The State insists, as it did in Carver, that campaign contribution limits are subject
only to intermediate scrutiny, not the "rigorous standard of review" employed by the
Court in Buckley v. Valeo, 424 U.S. 1, 29 (1976) (per curiam). But as we noted in
Carver, the Supreme Court "articulated and applied a strict scrutiny standard of review"
to the federal contribution limits that were under challenge in Buckley, and "has not
ruled that anything other than strict scrutiny applies in cases involving contribution
limits." Carver, 72 F.3d at 637; see also Citizens Against Rent Control/Coalition for
Fair Housing v. City of Berkeley, Cal., 454 U.S. 290, 294 (1981) ("[R]egulation of
First Amendment rights is always subject to exacting judicial review."); Russell v.
Burris, 146 F.3d 563, 567 (8th Cir.), cert. denied, 67 U.S.L.W. 3332 (U.S. Nov. 16,
1998) (Nos. 98-397, 98-399). The State must demonstrate, therefore, that it has a
compelling interest and that the contribution limits at issue are narrowly drawn to serve
that interest. See Buckley, 424 U.S. at 25; Russell, 146 F.3d at 567; Carver, 72 F.3d
at 638.

A.

The State contends that its compelling interest is in avoiding the corruption or
the perception of corruption brought about when candidates for elective office accept
large campaign contributions. The State further posits, citing Buckley, that corruption

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and the perception thereof are inherent in political campaigns where large contributions
are made, and that it is unnecessary for the State to demonstrate that these are actual
problems in Missouri's electoral system. Recent precedent from this Court is to the
contrary. In both Carver and Russell, we were not satisfied with the mere contention
that the states have an interest (an indisputably compelling interest, see Day v. Holahan,
34 F.3d 1356, 1365 (8th Cir. 1994), cert. denied, 513 U.S. 1127 (1995)) in maintaining
the integrity of their elections. We required some demonstrable evidence that there
were genuine problems that resulted from contributions in amounts greater than the
limits in place. See Russell, 146 F.3d at 568 ("The defendants must prove first that
there is real or perceived undue influence or corruption attributable to large political
contributions . . . .") (emphasis added); id. at 569 (noting that none of the defendants
"provided any credible evidence" of actual corruption, nor had they proved a perception
of corruption); Carver, 72 F.3d at 638.3

In reaching its conclusions concerning the constitutionality of federal campaign
contribution restrictions, the Buckley Court noted the perfidy that had been uncovered
in federal campaign financing in 1972. See 424 U.S. at 27 n.28. But we are unwilling
to extrapolate from those examples that in Missouri at this time there is corruption or
a perception of corruption from "large" campaign contributions, without some evidence
that such problems really exist. See Russell, 146 F.3d at 569; Carver, 72 F.3d at 638.
We will not infer that state candidates for public office are corrupt or that they appear
corrupt from the problems that resulted from undeniably large contributions made to

3
On the subject of the State's burden to prove its compelling interest, this Court
in Carver quoted (with some alterations by the Carver Court) the following passage
from United States v. National Treasury Employees Union, 513 U.S. 454, 475 (1995),
which in turn quoted Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664
(1994) (plurality opinion of Kennedy, J.): "'When the Government defends a regulation
on speech . . . it must do more than simply "posit the existence of the disease sought
to be cured." . . . It must demonstrate that the recited harms are real, . . . and that the
regulation will in fact alleviate these harms in a direct and material way.'"

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federal campaigns over twenty-five years ago. The State therefore must prove that
Missouri has a real problem with corruption or a perception thereof as a direct result
of large campaign contributions.

For its evidence, the State relies on the affidavit of the state senator who co-
chaired the Interim Joint Committee on Campaign Finance Reform when the
contribution limits were enacted. That senator pointed to no evidence that "large"
campaign contributions were being made in the days before limits were in place, much
less that they resulted in real corruption or the perception thereof. See Buckley, 424
U.S. at 28 (noting that "the problem of large campaign contributions [is] the narrow
aspect of political association where the actuality and potential for corruption have been
identified") (emphasis added). The senator did not state that corruption then existed
in the system, only that he and his colleagues believed there was the "real potential to
buy votes" if the limits were not enacted, and that contributions greater than the limits
"have the appearance of buying votes." Affidavit of Senator Wayne Goode at ¶ 9. His
statement that "[t]he greater the contribution, the greater potential there is for the
appearance of and the actual buying of votes," id., is conclusory and self-serving, given
the senator's vested interest in having the courts sustain the law that emerged from his
committee. There is no way for us to tell whether this single legislator's perception of
corruption is the "public perception," whether it is objectively "reasonable," and
whether it "derived from the magnitude of . . . contributions" that historically have been
made to candidates running for public office in Missouri. Russell, 146 F.3d at 569.

As a matter of law, the State has failed to come forward with evidence to prove
a compelling interest that would be served by the restrictions SB650 imposes on
campaign contributions. In fact, the State has been unable to adduce sufficient
evidence even to show that there exists a genuine issue of material fact regarding its
alleged interest. Therefore, the limits here cannot withstand constitutional challenge.

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 B.

Even if the State had come forward with evidence sufficient to show that it had
a compelling interest in enacting and enforcing campaign contribution limits, it cannot
demonstrate that the SB650 limits on the amount of campaign contributions are
narrowly tailored to serve that interest. That is, we can say as a matter of law that the
limits at issue here are so small that they run afoul of the Constitution by unnecessarily
restricting protected First Amendment freedoms.

After inflation, limits of $1,075, $525, and $275 cannot compare with the
$1,000 limit approved in Buckley twenty-two years ago.4 We previously have
acknowledged that the Court in Buckley did not declare that limits of less than $1,000
on contributions are unconstitutional per se, but we also recognize that the $1,000
figure provides us with something of a benchmark. See Day, 34 F.3d at 1366. In
today's dollars, the SB650 limits appear likely to "have a severe impact on political
dialogue" by preventing many candidates for public office "from amassing the resources
necessary for effective advocacy." Buckley, 424 U.S. at 21. Even if the State had
demonstrated a compelling interest, the limits set by SB650, absent the State's having
proven the actual necessity for such a heavy-handed restriction of protected speech, can
only be regarded as "too low to allow meaningful participation in protected political
speech and association, and thus . . . not narrowly tailored to serve" the alleged
interest. Day, 34 F.3d at 1366.

4
SMG contends that $1,075 in 1976 dollars is the equivalent of just $378 in
purchasing power today. The State argues that SMG's use of the Consumer Price Index
(CPI) to calculate the effects of inflation on dollars spent for campaign contributions
is inappropriate. Nevertheless, the State has not come forward with any other measure
it deems more appropriate. In fact, the subsection of SB650 that provides for the
biennial adjustment of the contribution limits to account for inflation relies on the CPI
for the calculation. See Mo. Rev. Stat. § 130.032.2 (Supp. 1997).

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 In the circumstances presented here, we do not believe that we run the risk of
attempting to "fine tun[e]" the work of the Missouri legislature, or that we otherwise
are exercising authority that is not ours in order to hold that these limits are overly
restrictive of freedoms protected by the First Amendment. Buckley, 424 U.S. at 30.
We so conclude because the difference between these limits of $1,075, $525, and $275,
and larger dollar limits that might be constitutionally sound (that is, narrowly tailored
to serve a compelling state interest), are not "distinctions in degree" but "differences
in kind." Id. But see Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 648 (6th
Cir.) (holding that "$1,000 limitation on direct contributions in connection with local
and state elections in Kentucky is not different in kind from the $1,000 limitation on
direct contributions in connection with federal elections upheld in Buckley"), cert.
denied, 118 S. Ct. 162 (1997). Although, like the Court in Buckley, we are not
prepared to state definitively what difference would be one of "degree" as compared
with one of "kind," we can say these limits are overly restrictive as a matter of law. We
again remind the State that it has the burden of showing that any limits it places on
campaign contributions are narrowly tailored to serve the State's compelling interest in
addressing proven "real or perceived undue influence or corruption attributable to large
political contributions." Russell, 146 F.3d at 568. Once those who would regulate and
limit constitutionally protected political speech satisfy their heavy burden of proof, the
problem of judicial line-drawing can be expected largely to disappear.

IV.

In sum, the campaign contribution limits at issue in this case, even with the
biennial adjustments for inflation that SB650 provides, violate SMG's and Fredman's
First Amendment rights of free speech and association. The judgment of the District
Court is reversed and the case is remanded with instructions to enter summary
judgment for SMG and Fredman.

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ROSS, Circuit Judge, concurring.

I concur in the decision to reverse the judgment of the district court and remand
for entry of summary judgment for SMG and Fredman. I do so because I agree with
part III A of the majority opinion holding that the State failed to satisfy its evidentiary
burden.

However, for the reasons stated by Judge Gibson, I do not join in part III B of
Judge Bowman's opinion finding that the contribution limits are different in kind from
those approved in Buckley v. Valeo, 424 U.S. 1 (1976).

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent.

The Court today departs from the teaching of Buckley v. Valeo, 424 U.S. 1
(1976), and gives far too expansive a reading to the recent decisions of this Court in
Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), and Russell v. Burris, 146 F.3d 563 (8th
Cir. 1998). Upon a record more slender than the one before us, Buckley upheld
contribution limits of $1,000 per election for all federal offices, while Missouri’s statute
provides a $1,075 limit for statewide offices. Mo. Rev. Stat. § 130.032 (Supp. 1997).
Because I cannot distinguish Buckley from the present case, I would uphold the
contribution limits at issue.

I.

In Carver and Russell, we faced graduated annual contribution limits between
$300 for statewide offices and $100 for other offices, and we held that both statutes
violated the First Amendment. Carver, 72 F.3d at 641-44; Russell, 146 F.3d at 569-71.

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Both statutes were adopted by initiative petitions.5 We contrasted these limitations
with those at issue in Buckley -- $1,000 per election or $2,000 per election cycle -- and
found them “different in kind.” Carver, 72 F.3d at 644; Russell, 146 F.3d at 571. For
example, we observed that the limitations challenged in Carver were the lowest
contribution limits in the nation and that the State had presented only meager evidence
to justify these limitations. 72 F.3d at 641-42. The holdings of Carver and Russell,
that statewide limits of $300 per election cycle “differ in kind” from the limit in
Buckley of $2,000, point compellingly to a different conclusion in this case.

It is of interest that Carver contrasted Proposition A -- with limits ranging from
$100 to $300 -- to the legislation now before us, with limits then ranging from $250 to
$1,000. Id. at 642-43. In view of the Attorney General’s opinion, the dollar limits in
Proposition A were the more restrictive and therefore provided the relevant limitation
on the plaintiffs’ contributions. Id. at 634-35. Carver struck Proposition A’s limits but
did not discuss the propriety of the limits now before us. Nevertheless, in contrasting
Proposition A’s limits with those enacted by the legislature, the similarity between the
legislatively-enacted limits and those in Buckley was evident.

Less evident is how to distinguish Buckley from the present case. When we
compare the $1,075 contribution limit2 imposed by Senate Bill 650 for each election

1
The Arkansas statutes in Russell had a $100 limit for all state offices other than
the enumerated offices which were elected statewide. Russell, 146 F.3d at 565. The
provisions at issue in Carver contained limitations of $100 per election cycle for
candidates in districts with fewer than 100,000 residents; $200 for candidates in
districts of 100,000 or more residents; and $300 for statewide candidates. Carver, 72
F.3d at 635.
2
The legislation at issue imposes a limit of $1,075 per election, but a $2,150 limit
per “election cycle.” An “election cycle” is the “period of time from [the] general
election for an office until the next general election for the same office.” Mo. Rev.
Stat. § 130.011 (Supp. 1995). It is of interest that the average household income in
Missouri is about $31,000 per year.

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with the $1,000 upheld by Buckley, there is simply no difference in kind. The $1,075
limit applies to statewide races, just as Buckley’s $1,000 limit applies to the Senate,
a statewide race, and the presidential elections. Buckley’s reasoning would similarly
uphold Senate Bill 650’s lower contribution limits in non-statewide elections. When
one accounts for the lower number of voters in non-statewide electoral districts, the
limits at issue compare favorably with the $1,000 limit in Buckley, which applied to
statewide races as well as to elections for the U.S. House of Representatives. There
are nine House districts in Missouri, and in the most recent statewide election, the
number of votes cast in these districts averaged 235,094. Official Manual, State of
Missouri 563-65 (1997). Meanwhile, Senate Bill 650 imposes a contribution limit of
$525 upon races for state senators as well as to certain other elections in districts
ranging from 100,000 to less than 250,000 in population. Mo. Rev. Stat. § 130.032
(Supp. 1997). There are thirty-five Senate districts in Missouri. Seventeen of these
seats were contested in 1996, and an average of 59,254 people voted in each election.
Official Manual, State of Missouri 566-67 (1997). When the size of the state senatorial
districts is contrasted with federal congressional districts as well as the entire State
itself, there is plainly no “difference in kind” between these legislative limits and those
countenanced by Buckley. Finally, the same must be said for the $275 limit for state
House elections. In the last election, the number of votes cast in such districts averaged
12,325. Id. at 567-80. With the number of voters in such districts, I cannot conclude
that the $275 limit “differs in kind” from those that Buckley upheld. As Buckley
observed, Congress could have structured limits in a graduated fashion, but its failure
to do so did not invalidate the legislation. Buckley, 424 U.S. at 30; Carver, 72 F.3d at
641. Buckley recognizes, then, that graduated limits such as Missouri’s are an
acceptable solution to the dangers posed by unlimited campaign contributions.

Carver, Russell, and Part III B of Chief Judge Bowman’s opinion in this case
discuss at length the effect of inflation upon the Buckley limits. Carver, 72 F.3d at 641;

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Russell, 146 F.3d at 570-71. Yet Missouri’s statute expressly addresses the inflation
problem, and the $1,000 limit initially enacted has now grown to $1,075. See Mo.
Rev. Stat. § 130.032.2 (Supp. 1997) (limits adjusted for inflation). Significantly, the
campaign expenditures in Missouri’s statewide elections have risen markedly since
Senate Bill 650’s enactment, and there is no basis for rejecting the district court’s
conclusion that candidates for office remain “able to amass impressive campaign war
chests.”3

Buckley, of course, did not establish $1,000 as the constitutional floor for
permissible contribution limitations; see Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir.
1994). But even if it had, I would reject the argument in Part III B that inflation has
dissipated the similarity between the limits in this case and those approved in Buckley.
Inflation has not undermined Buckley’s precedential weight or modified its holding.
The $1,000 limit upheld in Buckley remains and is the law today, even though we have
used inflation to compare present contribution limitations with those upheld in 1976.
See Carver, 72 F.3d at 641; Russell, 146 F.3d at 570-71; Day, 34 F.3d at 1366.4
Despite ample opportunity to modify Buckley, the Supreme Court has never added the
“inflation proviso” that Part III B relies upon. If Buckley’s holding must wax and wane
with inflation, as Part III B seems to argue, then the very statute that Buckley upheld
would now be unconstitutional, for inflation alone would render the $1,000 limit
“different in kind” from when the Supreme Court upheld it. Whatever may be the

3
See District Court Memorandum and Order at 15-16, J. App. 191-92; see also
J. App. 43-52.
4
In all three cases, the limits at issue were patently “different in kind” from the
limits in Buckley, with or without the aid of inflation. Carver and Russell struck
election cycle limits ranging from $300 for statewide offices to $100 for other offices,
while Day struck a $100 limit. Carver, 72 F.3d at 641-44; Russell, 146 F.3d at 569-71;
Day, 34 F.3d at 1366.

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pernicious effects of inflation, I am certain that the First Amendment’s dictates do not
depend upon the Consumer Price Index.

More importantly, even if it were proper to adjust Buckley for inflation, Part III
B lacks a principled yardstick to assess the constitutionality of any contribution limit.
Its measure of what “differs in kind” and what “differs in degree” from the Buckley
limits is standardless and lacks any explanation to support its bald conclusion that the
limits at issue are “overly restrictive as a matter of law.”5

II.

Putting to one side the facial similarity between the statute stricken today and
that upheld in Buckley, the State has adequately justified the contribution limits at
issue. Buckley and our cases both teach that contribution limits are subject to “the
closest scrutiny.” Buckley, 424 U.S. at 25; Carver, 72 F.3d at 636; Russell, 146 F.3d
at 567. The State has the burden to demonstrate a compelling interest, which Buckley
defined as limiting the reality or appearance of political corruption stemming from large
financial contributions. 424 U.S. at 26. Both Carver and Russell found no direct
evidence of real or perceived undue influence. Carver, 72 F.3d at 642-43; Russell, 146
F.3d at 569-70. Accordingly, we struck the contribution limits in both cases.

The present case is readily distinguishable from Carver and Russell. Although
the House and Senate in Missouri preserve no formal legislative history, the record
hardly lacks evidence that the statute at issue limits the reality or perception of undue

5
Indeed, even with the aid of inflation, it does not follow that today’s
contribution limits “differ in kind” from what the Supreme Court upheld in 1976.
Differing costs, whether higher or lower, of new communications media (fax machines,
e-mail, and the Internet, as well as more traditional modes of political speech) and
modern fund-raising methods (the emergence of “soft money” is but one relevant post-
Buckley development) simply make comparison a morass of conjecture.

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influence and corruption. In summary judgment papers, the State presented an affidavit
of Senator Wayne Goode. Goode served twenty-two years in the Missouri House and
nine years in the Senate before he co-chaired the Joint Interim Committee on Campaign
Finance Reform that prepared Senate Bill 650, now the statute before us. The senator
stated that the Committee heard “a broad spectrum of opinions ... on the issue of
campaign contribution limits.” He described the committee discussions of what it costs
to run a campaign and the level at which contributions threaten to corrupt political
officials and to erode public confidence in the electoral process. The committee heard
testimony on the issue of balancing the need to run an effective campaign against the
need to limit the potential for buying influence. Balancing the concerns, the committee
reached the contribution limits of $250 to $1,000 by consensus.6 Goode and the other
members believed that contributions over those limits create both the appearance that
contributors could purchase the votes of elected officials and the danger of actual vote-
buying. The most recent elections themselves suggest that the State has limited at least
the appearance of corruption in the political process. Goode Affidavit, ¶ 11; J. App.
171. The limits prevent disproportionate funding of particular campaigns and curtail

6
The Court today attempts to minimize Senator Goode’s affidavit as the
testimony of a single legislator, but the affidavit contains the Senator’s description of
the legislature’s conclusions, which is precisely the support cited by Buckley when it
upheld the contribution limits imposed by Congress. See 424 U.S. at 27, 28, 30. It
must again be emphasized that Goode’s observations are those of the co-chair of the
joint legislative committee from which the limits at issue originated. To brand his
affidavit as “self-serving, given the senator’s vested interest in having the courts sustain
the law that emerged from his committee” not only rules upon the credibility of a
witness on a summary judgment motion, but also gratuitously impugns the senator’s
description of the evidence before the Committee, the conclusions drawn by the
Committee, and his fellow legislators’ first-hand knowledge of what it costs to wage
a campaign and the dangers presented by contributions above the limits enacted.

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the opportunities for buying political influence. Id. This evidence stands in stark
contrast to the lack of evidence on these issues in Carver and Russell.7

In addition to the description in Senator Goode’s affidavit, what record is
available to us reflects that the House and Senate in Missouri exerted considerable
effort in reaching accord on the bill finally enacted. Two bills containing contribution
limits were introduced in the House, House Bills 1304 and 1523. Senate Bill 801 was
introduced and passed in the Senate, and the House passed the House Committee’s
substitute for Senate Bill 650. A conference committee substitute for the House
Committee substitute for Senate Bill 650 was ultimately adopted by the House and
Senate and signed by the Governor. This action in both legislative bodies demonstrated
the careful attention given to this legislation and the give-and-take before final
enactment. We commented upon this process in Carver. 72 F.3d at 645 n.18.

Carver also recited the Supreme Court’s admonition that we “must accord
substantial deference to the predictive judgments of the legislature.” 72 F.3d at 644
(quoting Turner Broadcasting System v. FCC, 512 U.S. 622, 665 (1994)). Turner
referred to the deference owed to Congressional findings. In Carver, we left open the
question whether state legislatures are due similar deference. Carver, 72 F.3d at 644.
Although Carver rejected the State’s argument that we should accord such deference
to a citizens’ initiative, the limitations now before us became law only after careful and
informed deliberation by the legislature. The Court should not so lightly cast aside the
legislature’s findings in favor of its own. It is hardly counterintuitive that large
campaign contributions might corrupt politics and invite public cynicism. The State has
imposed only modest restrictions upon political speech, and it need not justify them
with scientific precision.

7
Carver and Russell involved only evidence of certain specific contributions,
without evidence of their impact, as after-the-fact justifications for the initiative
proposals at issue.

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 The Court’s rejection of the description of Senate Bill 650's legislative
underpinnings is plainly at odds with Buckley. Accepting the argument that the
appearance of political corruption could justify the limitations then at issue, Buckley
stated:

Of almost equal concern as the danger of actual quid pro quo
arrangements is the impact of the appearance of corruption stemming
from public awareness of the opportunities for abuse inherent in a regime
of large individual financial contributions... Here, ... Congress could
legitimately conclude that the avoidance of the appearance of improper
influence “is also critical ... if confidence in the system of representative
Government is not to be eroded to a disastrous extent.”

424 U.S. at 27 (quoting C.S.C. v. Letter Carriers, 413 U.S. 548, 565 (1973)). It is true
that the State must do more than simply “posit the existence of the disease to be cured.”
See Carver, 72 F.3d at 638 (citing United States v. National Treasury Employees
Union, 513 U.S. 454, 475 (1995) (quoting Turner Broadcasting System v. FCC, 512
U.S. 622, 664 (1994) (Kennedy, J., plurality))). The State, by the Goode affidavit, has
demonstrated not only the dangers posed by unlimited campaign contributions, but also
the conclusions reached as to “alleviat[ing] these harms in a direct and material way.”
Id.

I cannot reconcile the short shrift given the Goode affidavit by the Court today
with the Supreme Court’s approach in Buckley, which cited no actual evidence that
large contributions might give rise to the appearance of political corruption and which
deferred to what Congress could have reasonably concluded.8 See 424 U.S. at 27, 28,

8
Although the need to limit the perception of political corruption by itself justifies
the contribution limits at issue, today’s opinion takes note of what little evidence of
actual corruption was before the Buckley court: the “perfidy that had been uncovered
in federal campaign financing in 1972.” See Buckley, 424 U.S. at 27 n.28. Yet
Buckley’s passing reference to the 1972 election does not aid this Court’s opinion.
Buckley nowhere supports the particular scrutiny undertaken by the Court today.

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30 (Congress “could legitimately conclude” that avoiding the appearance of corruption
is essential to maintaining confidence in government; Congress “was surely entitled to
conclude” that disclosure limitations alone would not adequately combat corruption and
its appearance; Congress “was justified in concluding that the interest in safeguarding
against the appearance of impropriety requires that the opportunity for abuse inherent
in the process of raising large monetary contributions be eliminated.”).

Senate Bill 650 is premised upon just such reasonable legislative conclusions,
as evidenced by Senator Goode’s affidavit. The Court today rejects those conclusions,
which closely resemble those recognized by Buckley when it upheld limitations
strikingly similar to those now at issue. In rejecting the state’s evidence, the Court
sidesteps binding Supreme Court precedent and fails to provide meaningful guidance
to those who might hope to craft campaign reform legislation that will survive this
Court’s unprecedented scrutiny.

III.

It must also be noted that the Sixth Circuit has recently approved a Kentucky law
with a contribution limit of $1,000 per election year. Kentucky Right to Life v. Terry,
108 F.3d 637, 648 (6th Cir. 1997). The Court creates a conflict between the circuits,
and in doing so disregards the inescapable similarity between the legislation that it
strikes and that which the Supreme Court upheld.

Certainly, it provides no suggestion that the Goode affidavit would fail to satisfy
whatever evidentiary inquiry is required to support a legislative body’s conclusion that
financial contributions have created or will create the appearance of corruption.

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 Perhaps members of the Court quarrel not only with the contribution limits at
issue today, but with Buckley itself, as was made evident during oral argument. We
are bound by Buckley unless and until the Supreme Court declares otherwise.

I would affirm the summary judgment of the district court upholding the
contribution limits in Senate Bill 650.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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