'Super PACs' and the Role of 'Coordination' in Campaign Finance Law by Bradley A. Smith

by - October 22, 2013

These criticisms and proposals are largely based on an incorrect understanding of the concept of "corruption" adopted in the Court's seminal decision of Buckley v. Valeo (1976) and followed in Citizens United and SpeechNow.org. Buckley denies that speech can be corrupting. Rather, corruption - at least corruption significant enough to overcome First Amendment obstacles - occurs not in spending money or in gaining influence from spending money, but in the explicit exchange of contributions for favors. Buckley, then, does not tolerate restrictions on speech, but rather restrictions on certain forms of conduct - the conduct of bargaining for legislative favors. It is this act - and not the spending or contribution - that creates the potential for corruption and so can be regulated. This understanding protects political actors against free floating investigations by authorities, and also clarifies and demarcates the Court's holding that in some circumstances, the "appearance of corruption" can justify limits on campaign contributions. It also clarifies the limits of future regulatory efforts, and in particular suggests that efforts to define "coordination" based on past affiliations or contacts cannot withstand constitutional scrutiny.

'Super PACs' and the Role of 'Coordination' in Campaign Finance Law by Bradley A. Smith :: SSRN

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