Academic journal article Emory Law Journal

Coordination Is Corruption: An Argument for the Regulation of Coordinated Issue Advocacy under Campaign Finance Law

Academic journal article Emory Law Journal

Coordination Is Corruption: An Argument for the Regulation of Coordinated Issue Advocacy under Campaign Finance Law

Article excerpt

INTRODUCTION

A candidate is running for political office. The candidate advertises, but there are limits on advertising spending by the candidate's campaign. In response to these limits, the candidate suggests that campaign donors instead donate to a nonprofit supporting an issue important to the candidate. The nonprofit uses the donations to create advertisements with input from the candidate, but the advertisements do not directly solicit votes for the candidate. can the candidate continue requesting unlimited, unreported funds for the organization to create advertisements relating to the issues, without directly mentioning the candidate?

Almost this exact scenario was presented to the Wisconsin Supreme Court in Spring 2015, in the case State ex rel. Two Unnamed Petitioners v. Peterson.1 During a recall election, Wisconsin Governor Scott Walker allegedly requested that supporters donate to certain nonprofits supporting the Budget Repair Bill (the Bill), an especially controversial law that he passed.2 The nonprofits used the funds to create advertisements supporting the Bill and Governor Walker assisted in determining the advertisements' content.3 When the Milwaukee County District Attorney initiated an investigation into the unreported funds, the nonprofits challenged the investigation on several grounds, including the argument that the state could not regulate advertisements about issues that do not mention a specific candidate. The Peterson court sided with the nonprofits, holding that speech that only mentions issues, known as issue advocacy, is unregulable, even when a candidate has input on, or coordinates, the communication.4

Federal campaign finance regulation is well established in the United States.5 Modern regulation is based on the Federal Election Campaign Act of 1971 (FECA),6 as amended in 1974.7 Proponents of regulation point to its role in ensuring both the integrity of elected government officials and the public perception of their integrity.8 A democratic society depends on trust in politicians, because elected officials are supposed to represent the desires of constituents.9 Prominent politicians becoming embroiled in political corruption scandals, such as Senator Robert Menendez of New Jersey,10 Senator Alan Cranston of California,11 and Governor Rod Blagojevich of Illinois,12 lend credence to the idea that politicians will give quid pro quos in exchange for monetary donations. For example, regulating campaign funding by requiring disclosure of donors and the amount of campaign funding gives the public information to either reveal improper conduct or have confidence that its politicians are not being improperly influenced.

While the government's interest in preventing both the appearance of corruption and actual corruption is strong, politicians and their donors have strong First Amendment rights to freedom of speech and association.13 Those interests cannot be taken lightly.14 Therefore, balancing the interest in protecting First Amendment rights with the interest in preventing corruption and its appearance determines regulable communications in campaign financing.15

In Buckley v. Valeo,16 the Supreme Court identified two important distinctions to determine the regulability of communications in campaign finance law. The first is between express advocacy and issue advocacy.17 Express advocacy involves communications which specifically reference a candidate, or which contain speech that is the "functional equivalent" of a specific reference.18 This type of advocacy is regulable.19 Issue advocacy encompasses all other communications, which usually involve communications concerning an issue rather than a specific candidate.20 This type of advocacy is not regulable.21

The second distinction is between contributions and independent expenditures.22 One form of contributions includes coordination or collaboration between a candidate and an outside organization.23 The clear connection between contributions and a candidate create a potential for a quid pro quo, making them regulable. …

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