Whether mere hypothetical assertions and judicial common sense are sufficient to impose asymmetrical restrictions on political speech without evidence of actual quid pro quo corruption

QUESTIONS PRESENTED When the government restricts political speech, to satisfy the First Amendment, the government must “point to record evidence or legislative findings demonstrating the need to address a special problem.” FEC v. Ted Cruz for Senate, 596 U.S. 289, 307 (2022) (internal quotation marks omitted). This case presents the first opportunity for this Court to establish the quantum of evidence the government must adduce before it can restrict political speech through asymmetrical campaign contribution limits when it is conceded that the government lacks direct evidence of quid pro quo corruption. New York has asymmetrical contribution limits for major parties and independent bodies.' In fact, major party candidates are allowed to receive, via party transfer, as much as fifteen times the amount that minor party candidates are allowed to receive. The State creates this asymmetry through three interconnected provisions. First, major parties may receive individual contributions up to $138,600, while independent bodies may only receive the substantially lower contribution limits for individuals to candidates (in some cases, fifteen times less). Second, major parties may contribute unlimited amounts to their candidates, while independent bodies may only transfer an amount equivalent to the contribution limits permitted for individuals for that same race. Third, major parties may establish separate bank accounts (called “housekeeping” accounts) where parties can raise and spend unlimited sums of money for ordinary expenses and not for expressly advocating the election or defeat of a candidate. By contrast, 1 New York’s independent bodies are also known as minor parties. (i) ll independent bodies are prohibited from establishing such housekeeping accounts. Because the major parties may raise fifteen times more funds than independent campaigns and then may transfer those funds without limitation to their candidates, the de facto contribution limit for major party candidates can be fifteen times more than the limit contribution for independent candidates. In its opinion below, the U.S. Court of Appeals for the Second Circuit acknowledged that Respondent Commissioners failed to adduce evidence of “actual” quid pro quo corruption. App.30a-3la. Indeed, the Second Circuit found that independent bodies have never been involved in actual corruption and that the Commissioners have never brought an enforcement action against an independent body. App.31la. Nor did New York justify its asymmetrical contribution limits with evidence that minor political parties were vehicles for corruption in other States. See Ted Cruz for Senate, 596 U.S. at 307. The Second Circuit still, however, held that New York’s asymmetrical contribution limits that favor major political parties are constitutional under the justification of preventing the “appearance” of quid pro quo corruption. The New York Legislature made no such findings itself. The Second Circuit based its conclusion on specious sources: legislative history that did not discuss independent bodies, App.32a-33a, one hypothetical made in an eight-page affidavit and substantially repeated in an expert report, App.27a28a, assertions made by the same affiant in a deposition, App.27a, and “common sense,” App.40a. Missing was legislative history explaining the need for asymmetrical contribution limits, examples of actual corruption, polls, referenda, newspaper accounts, and lll any other evidence demonstrating that the public is aware of “opportunities for abuse inherent in a regime of large financial contributions to particular candidates.” McCutcheon v. FEC, 572 U.S. 185, 207 (2014); Ted Cruz for Senate, 596 U.S. at 305-11; Nixon v. Shrink Mo. Gov’t Pac, 528 U.S. 377, 393-94 (2000). Accordingly, the questions presented are: 1. Whether mere hypothetical assertions from party experts and judge-specific common sense are sufficient to impose asymmetrical restrictions on political speech when there is