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Hastings Constitutional Law Quarterly

Authors

Brent Ferguson

Abstract

This Article addresses a legal issue that has rapidly gained relevance since Citizens United and the proliferation of Super PACs: the constitutionally acceptable boundaries of treating campaign expenditures as contributions, and therefore allowing them to be limited in amount. The government may not limit Super PACs' spending because such groups may not legally coordinate with candidates, but Super PACs and other organizations have blurred the line of independence by spending millions on single candidates and employing people with close ties to the supported candidate. Current rules prevent some of this collaboration, but still allow much of it to occur.

Because of the increasing importance of this constitutional issue, scholars and the media have increasingly focused on it in the past few years. Yet none of them provide an in-depth examination of Buckley v. Valeo and subsequent case law to reach a comprehensive understanding of how to define campaign contributions. This Article fills that void, relying both on language from Supreme Court cases and the logical implications of their holdings to dispute the conclusions of law reached by some judges and academics. This Article reasons that an expenditure may be treated as a contribution if the candidate provides reliable indications that the expenditure is valuable, as long as the resulting definition does not impermissibly curtail the spender's right to engage in public discussion. Finally, this Article applies its test to laws that are being considered at the local, state, and national levels, such as rules preventing candidates from engaging in fundraising for Super PACs.

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