Coercion in Campaign Finance Reform: A Closer Look at Footnote 65 or Buckley v. Valeo


Legal scholars have thoroughly analyzed Buckley v. Valeo's treatment of limits on campaign contributions and expenditures. Scholarship has paid substantially less attention to footnote 65 of Buckley, in which the U.S. Supreme Court held that Congress could condition the provision of public funding to candidates on their willingness to accept expenditure limits. Critics have argued that the Court, by conditioning a public benefit on the forfeiture of a constitutional right, permitted the imposition of an unconstitutional condition. Furthermore, the Court has failed to provide a test for determining when incentives and penalties designed to encourage acceptance of expenditure limits become unconstitutionally coercive. In this Comment, Grant Davis-Denny defends footnote 65 from the unconstitutional-conditions criticism and proposes a test for addressing the coercion concern. He argues that conditional expenditure limits are permissible because they serve a compelling state interest in reducing corruption. After reviewing footnote 65 reforms at the state and local levels, the author criticizes three coercion tests that have been proposed by lower courts and commentators. He concludes by suggesting that the test should ask whether the challenged campaign finance law, taken as a whole, allows a typical candidate to run a competitive campaign without accepting the conditional expenditure limit.

About the Author

Comments Editor, UCLA Law Review, Volume 50. J.D. candidate, UCLA School of Law, 2003; B.A., Kansas State University, 1999.

By uclalaw