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78 S. Cal. L. Rev. 885 (2004-2005)
Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns

handle is hein.journals/scal78 and id is 899 raw text is: ARTICLE RETHINKING THE UNCONSTITUTIONALITY OF CONTRIBUTION AND EXPENDITURE LIMITS IN BALLOT MEASURE CAMPAIGNS RICHARD L. HASEN* I. INTRODUCTION Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns.2 These * William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles. Thanks to Beth Garrett, Ron Levin, Dan Lowenstein, Rick Pildes, Bob Stem, and participants at a Washington University lunch talk and at the USC-U.C. Irvine Symposium on The Impact of Direct Democracy for useful comments and suggestions. Thanks also to Justin Bowen and Nicole Drey for research assistance, Paul Howard for library assistance, and employees in the California Secretary of State's office and the California State Archive for assistance in compiling campaign finance data. 1. See Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981). 2. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). Precedent from the 1990s even precludes disclosure of some expenditures funding ballot measure campaigns. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). But the precise reach of Mclntyre is unclear. See Richard L. Hasen, The Surprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy, 3 ELECTION L.J. 251, 252-53 (2004). One thoughtful commentator is quite sanguine about the constitutionality of most ballot measure disclosure laws following more recent developments in the Supreme Court. See Elizabeth Garrett, McConnell v. FEC and Disclosure, 3 ELECTION L.J. 237, 243-44 (2004). I do not address disclosure issues in this Article, assuming that courts would hold that it is constitutional in most circumstances to require those who are spending money supporting or opposing ballot measures to file reports disclosing contributions and expenditures.

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