Coordination Reconsidered

by - May 07, 2013

At the heart of American campaign finance law is the distinction drawn by the Supreme Court in Buckley v. Valeo between contributions and expenditures.1 According to the Court, contributions may be limited because they pose the dangers of corruption and the appearance of corruption, but expenditures pose no such dangers and therefore may not be limited. The distinction between the two types of campaign spending turns not on the form—the fact that contributions proceed from a donor to a candidate, while expenditures involve direct efforts to influence the voters—but on whether the campaign practice implicates the corruption concerns that the Court has held justify campaign finance regulation. As a result, not all expenditures are exempt from restriction.2 Independent expenditures undertaken by an individual or group in support of a candidate or against her opponent are constitutionally protected from limitation. In the Court’s view “[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”3 But, as Buckley found, expenditures by supporters of a candidate that are coordinated with the candidate benefited are in reality “disguised contributions” that pose the same corruption dangers as outright contributions.4 Congress can regulate such coordinated expenditures as contributions, and, indeed, has done so5 in order to distinguish between “independent expressions of an individual’s views and the use of an individual’s resources to aid in a manner indistinguishable in substance from the direct payment of cash” to a candidate.6 As the Supreme Court has noted approvingly, “Congress drew a functional, not a formal, line between contributions and expenditures.”7 This coordination/independence distinction is, thus, critical to maintaining the integrity of the foundational contribution/expenditure distinction.

Columbia Law Review

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