Brent Ferguson

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Emory L. J. Online


In July, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups like Super PACs if the groups' ads do not expressly advocate the election or defeat of a candidate. The decision is erroneous under federal precedent and fundamentally misunderstands the Supreme Court's holdings distinguishing between independent spending and spending coordinated with a candidate. Wisconsin's regulatory scheme will be largely inoperable for the time being: Contribution limits will be fairly meaningless, at least for sophisticated actors who seek to circumvent them. And the logic of the decision leads to the conclusion that candidates have the constitutional right to set up campaign accounts that may accept unlimited contributions, so long as that money is not used for express advocacy.

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