“Beyond Coordination: Defining Indirect Campaign Contributions for the Super Pac Era”

Brent Ferguson has posted this draft on SSRN (forthcoming Hastings Constitutional Law Quarterly).  Here is the abstract:

Buckley v. Valeo held that the government may limit political contributions to candidates, but it may not limit independent campaign expenditures by individuals and groups. However, the Court also held that governments may treat outside expenditures as indirect contributions to candidates if they were made with the consent of or in cooperation with a candidate. Since Citizens United and the rise of Super PACs, the line between outside spending and campaign contributions has grown ever more important because Super PACs must avoid excess collaboration with a candidate to ensure that their spending may not be limited.

In response to the rise of outside spending, some regulators have proposed new rules that would define campaign contributions more broadly in order to prevent Super PACs and other groups from maintaining close relationships with candidates. At the same time, commentators have begun to examine the constitutional line for such regulations. Yet recent commentary has misconstrued Buckley and later cases, and no recent work has comprehensively examined Buckley and its progeny to produce a comprehensive theory of how such regulations should be treated.

This Article performs that examination, concluding that Buckley and subsequent cases allow for a fairly broad definition of indirect contributions. Based on Buckley’s language and its logical underpinnings, the Article argues 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. After putting forth this theory, the Article addresses several proposed regulations, such as one that would prevent candidates from fundraising for Super PACs, and analyzes whether they are constitutionally permissible.

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