Regulating Political Contributions by State Contractors: The First Amendment and State Pay-to-Play Legislation

In this article, Professor Reed discusses recent legislation aimed at eliminating so-called “pay-to-play” between state contractors and state political candidates. The article begins by providing a high-level overview of the types of law state legislatures have passed, focusing on six states with generally applicable pay-to-play laws: Connecticut, Kentucky, New Jersey, Ohio, South Carolina, and West Virginia. The article then discusses the First Amendment issues raised by these state laws. Finally, it concludes that states passing pay-to-play laws should tailor the reach of such laws to focus on those contributors and recipients closely related to state contractors. States also can build additional safeguards into pay-to-play legislation by requiring open and competitive bidding of state contracts or by prohibiting earmarked contributions.