Campaign Finance Regulation

Hurley v. Van Wagner




Congress can't regulate primaries

In re Anti-Saloon League


League must disclose receipts under FCPA cuz they sought to affect the election



the anti-Newberry for FCPA - FCPA constitutional exercise of Cong's power to do whatever they want in interest of "purity"/"self-preservation" (w/ x lims)



Rumely trying to do work-around to get higher contributions that the $500 limit above which he'd have to disclose contributor names.

US v. Auto Workers




reversed dismissal, avoided C.l q; Stat 18 USC § 610 covered expenditures, primaries, and labor org.s that weren't covered by Tillman



upholding limits on campaign contributions, reporting & disclosure req.ts, and public financing scheme as justified by interests in corruption, appearance of corruptions, undue influence (?). Struck limits on expenditures as substantially and directly restricting 1A speech. Standard: "rigorous," balancing test, "closely drawn." Content distinction on "express advocacy" DISMISSED AGG OF WEALTH rationale



1A free speech fundamental component of 14A DP; hopping over (assuming) that free speech applies equally to corporations as to natural persons; Overruled Mass. S Ct decision upholding prohibition on corp/bank expenditures to influence referendum and claiming 1A only applies to corp.s on issues that materially affect it.

Fair Pol Pract.s Cm'n v. Sup. Ct.


Upholding other portions of California's Political Reform Act of 1974, the court found the prohibition against lobbyist contributions and required disclosure of private financial matters irrelevant to petition activities, violated First Amendment. (attempt by CA to crack down on corruption in this way considered overbroad)

FEC v. Nat'l R to Work


The NRWC established a fund to make contributions on behalf of federal candidates. The FEC had determined that there was probable cause to believe that NRWC had violated § 441b by soliciting contributions from persons who were not its members. The NRWC filed a complaint in district court one seeking injunctive and declaratory relief against the FEC. The FEC filed an enforcement proceeding against the NRWC in district court two, the lower district court, seeking to establish the NRWC's violation of § 441b. The actions were consolidated in district court two, wherein it granted summary judgment for the FEC. The Court found the issue to be whether the NRWC limited its solicitation of funds to members within the meaning of 2 U.S.C.S. § 441b(b)(4)(C). The court found that it did not, and reversed. The Court did not believe that Congress intended to allow the 267,000 individuals solicited by NRWC to come within the exclusion for "members" in 2 U.S.C.S. § 441b(b)(4)(C). Under the circumstances, those solicited were insufficiently attached to the corporate structure of NRWC to qualify as "members."





Our single most pro-regulation case; everything after is retrenchment. Respondent, state chamber of commerce, brought an action to challenge the constitutionality of § 54(1) of the Michigan Campaign Finance Act, Mich. Comp. Laws § 169.254(1) (1979), which prohibited corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office. The appellate court held that § 54(1) could not be applied to respondent, a state nonprofit corporation, without violating the First Amendment. The State appealed from the decision. The Court reversed, holding that application of § 54(1) to respondent was constitutional because the provision was narrowly tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political war chests amassed with the aid of the legal advantages given to corporations





Petitioner was convicted of extortion in violation of the Hobbs Act, 18 U.S.C.S. § 1951, as a result of bribes taken from an undercover agent. The Court affirmed the decision of the appellate court because the government needed only to show that petitioner obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts. The court found that there was nothing in either the statutory text or the legislative history of § 1951 that was a contrary direction by Congress to the common-law meaning of extortion. The wrongful acceptance of a bribe established all the inducement that the statute required. The court found that the jury instruction was proper because the quid pro quo requirement was satisfied. The offense was completed at the time petitioner received the payment in return for his agreement to perform specific official acts. The fulfillment of the quid pro quo was not an element of the offense.

Sun-Diamond Growers


Petitioner United States sought review of the court of appeal's decision reversing respondent trade association's conviction for illegally bestowing gifts on a former secretary of agriculture. The court held that, in order to establish a violation of the "illegal gratuity statute," 18 U.S.C.S. § 201(c)(1)(A), petitioner was required to prove a link between a thing of value conferred upon a public official, plus a specific "official act" as defined in 18 U.S.C.S. § 201(a)(3) for or because of which the gift was given. To hold otherwise would criminalize token gifts made to public officials by special interest groups without proof that a political favor was expected in return. The court found that the district court's jury instructions on the nature of illegal gratuities were not harmless error. The court affirmed the judgment and remanded the case to the district court for retrial.



Plaintiffs claimed that various amendments made by BCRA to the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C.S. § 431 et seq., and the Communications Act of 1934 violated, inter alia, their rights to freedom of speech and association under the First Amendment and were facially unconstitutional. The Court found, inter alia, that (1) "soft" money prohibitions under 2 U.S.C.S. § 441i(a) were justified by Congress's desire to prevent the actual and apparent corruption of federal candidates and officeholders; (2) restrictions under § 441i(b) on state and local party committees' use of soft money were necessary to prevent those committees' use as a conduit for soft money; (3) § 441i(d)'s limits on contributions to tax-exempt organizations applied only to funds not raised in compliance with FECA; (4) restrictions under 2 U.S.C.S. § 434 did not have to be limited to "express advocacy" and could encompass issue advertising; (5) limits on independent expenditures under 2 U.S.C.S. § 441a(d)(4) were invalid; and (6) recordkeeping requirements under 47 U.S.C.S. § 315(e) were virtually identical to existing regulations and were valid.
"Soft Money" = contributions to parties for nonelection related activities (previously allowed under FECA

Wisc R to Life


flipped McConnell on its head - suddenly presumes somethings not express advocacy unless clearly is; dn formally reinstate Buckley's "magic words" req.t for express advocacy but is there really any difference?

Davis v. FEC




The candidate, who had run for the House of Representatives using mostly personal funds, challenged § 441a-1(a), which raised the limit on individual contributions that non-self-financing candidates could receive if their opponents' expenditure of personal funds exceeded a certain amount. The candidate also challenged the related disclosure requirements of § 441a-1(b). The Supreme Court held that the candidate had standing even though his opponent did not take advantage of the asymmetrical contribution limits; the candidate faced prospective injury when he filed suit. The failure to resolve the case before the election did not moot the matter, which was capable of repetition. Section 441a-1(a) violated the First Amendment because it imposed a substantial burden on the right to use personal funds for campaign speech and was not justified by a compelling state interest. The asymmetrical limits did not operate to prevent corruption, and a desire to level electoral opportunities for candidates of different personal wealth was not a legitimate government objective. The § 441a-1(b) disclosure requirements were designed to implement § 441a-1(a) and therefore also were unconstitutional.



judge problem - ct freaks out, must see some huge difference (DC Cir)


Citizens United


The corporation released a documentary film about a presidential candidate. The corporation wanted to make the film available through video-on-demand within 30 days of the primary elections, and it produced advertisements to promote the film. The Supreme Court held that the ban on corporate-funded independent expenditures under § 441b could not be found inapplicable to the film, which was an electioneering communication that was equivalent to express advocacy. It was therefore necessary to determine whether § 441b was facially valid. The ban imposed under § 441b on corporate independent expenditures violated the First Amendment because the Government could not suppress political speech on the basis of the speaker's identity as a nonprofit or for-profit corporation. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which permitted such restrictions, and the portion of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), that upheld § 414b were overruled. However, the disclaimer and disclosure provisions under §§ 434 and 441d were constitutional as applied to the film and the ads, given the Government's interest in providing information to the electorate.

Danielczyk (4th Cir)


Appellees, who were officers of a limited liability company (LLC) and a corporation, allegedly had individuals give donations to a presidential campaign with the promise that they would be reimbursed by the LLC and the corporation. Appellees argued that § 441b(a) violated the First Amendment as applied to them in light of the United States Supreme Court's Citizens United decision, which struck down § 441b(a)'s prohibition against independent expenditures by corporations on speech that advocated for or against election of a candidate. The district court found that the ban on direct corporate contributions under § 441b(a) was unconstitutional as well. The court of appeals disagreed, finding that Federal Election Commission v. Beaumont supported the constitutionality of the ban on direct corporate contributions and that Beaumont remained controlling on that point. Although Beaumont involved the applicability of § 441b(a) to a nonprofit corporation, it made clear that the ban on direct contributions was constitutional as applied to all corporations. Citizens United explicitly declined to address the constitutionality of the ban on direct contributions.

Animal Defenders Int'l v. UK




Cit U for contribs

Menendez (D. NJ)


Criminal Law



After receiving money from foreign doctors during his reelection campaign, the public official sponsored legislation that would have permitted experienced doctors to be permanently licensed without passing state licensing exams. The appellate court concluded that proof of a quid pro quo was not required to establish a Hobbs Act violation because the proper inquiry was whether the parties intended payments to be "legitimate" campaign contributions. The Court disagreed with the view that a quid pro quo was not necessary for conviction under the Hobbs Act when an official receives a campaign contribution and held that the jury instructions to the same effect were error. It was unrealistic to conclude that a legislator committed the federal crime of extortion under color of official right when he acted for the benefit of constituents or supported legislation that furthered their interests, shortly before or after campaign contributions were solicited and received from those beneficiaries. It was also error to rely on the extortion conviction to affirm the tax conviction because an extortion conviction did not demonstrate that payments were not campaign contributions and hence taxable.

Ring (DC Cir)


Defendant argued that the district court's instructions on the honest-services counts misstated the law, the jury lacked sufficient evidence to find that an official act underlay the illegal-gratuity charge, and the district court ran afoul of Fed. R. Evid. 403 and the First Amendment when it admitted evidence of his lawful campaign contributions. The arguments failed. The attorney acted in his official capacity to influence the visa application process. The attorney himself lacked independent authority to expedite visa applications, but defendant's attempt to import a requirement that the official in question was to have ultimate decisionmaking authority into the definition of official act had no statutory basis. The district court repeatedly instructed the jury that the campaign contributions were not illegal which did much to mitigate the potential for confusion and First Amendment chilling, even if it could not entirely eliminate the potential for prejudice. Moreover, the probative value of the contribution evidence and the extent to which it was inexorably intertwined with other evidence weighed heavily in favor of admission.

Terry (6th Cir)


Defendant argued: the district court should have dismissed the indictment as it failed to identify a crime under Skilling; the district court improperly instructed the jury on the requirements for showing defendant accepted a bribe; and insufficient evidence showed defendant accepted a bribe. By requiring the government to show defendant violated a state-law duty, the district court added an element to the government's case. That helped defendant; it could not have conceivably prejudiced him. The jury instructions accurately conveyed an agreement was the key component of a bribe. The district court told the jury that to find defendant violated the honest services fraud statute, it needed to find a quid pro quo: that is, defendant agreed to accept a thing of value in exchange for official action. The jury rejected any legitimate explanation for the coconspirator's contributions in the face of strong circumstantial evidence defendant and the coconspirator had a corrupt bargain. Once the jury found they had an agreement, it could have found defendant accepted a bribe, violating the honest services fraud statute along the way. The same held true for defendant's conspiracy conviction.

Blagojevich (7th Cir.)





Corrupt Practices Act


British criminalization of treating, bribery, undue influence, paying for campaign events AND for accepting these in one's favor

Pendleton Act


exams for civil service applicants

Tillman Act


No $ contrib.s by fed bank/corp.s for fed elections. Gutted by Cit U; cited by that dissent

An Act Providing for Publicity of Contributions


Federal Corrupt Practices Act


Reporting req.ts, Campaign expenditure limits, Ban on corp contributions incl.g crim penalties

18 USC § 610


expanded on Tillman, included expenditures, primaries, labor org.s



See Buckley



See McConnell

Lobbying Reform act called?



Machiavelli "Discourses"


Cato's Letters


Constitutional Convention


Federalist 10


Bentham "Of Publicity"



Calhoun on Compensation Bill


Bentham "Of Publicity"



Mill - Considerations on Rep.tative Govt


Bellamy "Nationalism"


Cheerful apocalyptic Marxism <3! Claims Founders' vision of commercial republic turned out to be impossible to sustain because gives rise to $ power that actually pulls the strings rather than the people

Brandeis "Publicity"


"Earl Fitzwilliam and Malton"


Walzer "In Defense of Equality"


Contract Cases

Tool Co v. Norris


Trist v. Child


Contingency K is unenforceable as against public policy and sound morals
points specifically to the contingency fee as the problem
Friend writing letter was corruption.

Chesebrough v. Conover


jury's decision to uphold a K exchanging help getting RR (incl.g lobbying efforts) for bonds and stock in the RR co. permissible b/c they may have found no lobbying occurred (even though the temptation problem was clearly there)



land conveyance was contingent fee making K unenforceable

Steele v. Drummond


switch away from prevention of temptation rationales, starts to presume in favor of enforceability unless clearly bad K; self-interest lobbying K enforced