The Shakedown

The US Supreme Court has taken a restrictive view of the state interests sufficient to warrant regulation of campaign expenditures. The only interest justifying such restrictions, it has held, is the preventing quid pro quo corruption. The idea undergirding this is skepticism that electoral activities influencing the behavior of voters, rather than candidates, can “corrupt” elections. This sits uneasily with US law banning foreigners from financing election expenditures. Foreign-funded expenditures, like all expenditures, function by influencing voters, not candidates. So far, the Court nonetheless has upheld these bans, using an under-theorized political community rationale, but the bans seem unlikely to survive a more robust judicial interrogation. Drawing on case law involving restrictions on the political activity of federal employees, this paper argues that foreign expenditure bans are better supported by the “anti-shakedown” rationale used in those cases.