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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
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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