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Hastings Constitutional Law Quarterly

Abstract

This Note focuses on the appearance of political corruption in the United States after the two infamous Supreme Court decisions, Citizens United v. FEC and McCutcheon v. FEC. As a foundation, this Note explains that traditional bribery-giving money under the table to get political favors-is generally obsolete because developed countries penalize it equally. Because traditional bribery is unequivocally penalized in all contexts, people have found ways to obtain political favors lawfully: by putting money on the table, as opposed to under the table, through lobbying and campaign finance. This is called "appearance of corruption" because the practice looks like bribery, but follows the thin line of the law.

Citizens United and McCutcheon have changed how appearance of corruption is treated under the law. This Note compares how U.S. campaign finance laws after these decisions compare to campaign finance laws of other developed countries. First, the Note focuses on the two decisions that changed the controversial campaign finance laws. Then, it explains the reasoning underlying the two decisions. The analysis focuses on the First Amendment of the United States Constitution because the Supreme Court chose to evaluate laws limiting the appearance of corruption in the campaign finance context as a regulation on speech. The analysis then explains how the Supreme Court, using the First Amendment as a backdrop, heightened the standard to prove the appearance of corruption. The Note then calls into question the American campaign finance laws and compares them to similar provisions in the law of two major European countries-France and the United Kingdom. At that point, the Note embarks on a comparative analysis, critiquing and praising the U.S. law as compared to foreign campaign finance laws. In the end, this Note evaluates whether the Supreme Court really took a wild and unprecedented turn by extending constitutional protection to the appearance of corruption.

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