Davis v. FEC. It really is awful

michael curtis curtism at bellsouth.net
Fri Jul 4 06:12:27 PDT 2008

A sad confession.  So far I am going on news reports on Davis.  Based on that, Sandy and the blog notwithstanding, this case should rank with Dred Scott.  First, note the law.  Candidaters who are not millionares and must follow campaign finance limits, get the limits raised only to the extent of being able to match or try to match their millionare opponents. The law applies to open seats as well as seats with incumbents.  As to open seats, the millionare has a constittutional right to vastly outspend his opponent.  So as opposed to a more balanced dialogue, the millionare is guaranteed to have more speech.  And this is justified in the name of free speech.  Having to face a more balanced dialogue is an unacceptable penalty. As to incumbents, the arugment is that only if you can overwheam them in spending on your 30 second (often grossly dishonest) spots can you have a good chance to win. Of course, this tilts things in the direction of more millionares in the senate.  If you can't win with a balanced dialogue against an incumbent, why should be assume that you have a right to win. There are two views of free speech.  One is the multitude of voices approach--speech will counter speech.  Nothing in this view suggests that having one voice drown out the others is especially worthwhile.  The other view is that the rich have a constitutional right not to be fully answered by candidates with less resources.

This decision seems to kill the most promising approach to campaign finance reform--public finance, plus limited catch up funds when the opponent opts out or one it his with big spending from outside groups.  In each case it would seem the catch up provisions are unconstitutional  That will deter people from taking public finance because if they do they can have their voice drowned out by being vastly outspent. Statutes in Maine, in NC judicial elections, etc are now in jeaporday.  But not to worry.  We can be sure millionares are protected from a level playing field. Perhaps Dred Scott is not the best example. The best may be the decision striking down the progresssive income tax. 

The initial reaction that this decision is really awful seems correct if it holds what is suggested here.  The interest in replacing non millionare incumbents with millionare challengers does not seem to me to justify the harm done to free speech principles.

Michael Curtis
  ----- Original Message ----- 
  From: Sanford Levinson 
  To: Clayton, Cornell William ; Conlawprof at lists.ucla.edu 
  Sent: Thursday, June 26, 2008 6:22 PM
  Subject: RE: Davis v. FEC

  You might want to check Rick Pildes's blogs in Balkinization, http://balkin.blogspot.com/2008/06/sympathy-for-millionaire-self.html and http://balkin.blogspot.com/2008/06/who-thinks-millionaires-amendment-was.html 


  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Clayton, Cornell William
  Sent: Thursday, June 26, 2008 4:59 PM
  To: Conlawprof at lists.ucla.edu
  Subject: Davis v. FEC


  I am wondering what others on the list think about Alito's opinion in Davis v. FEC striking down the so-called "millionaire's amendment" (in which the contribution limits to the opponents campaign are increased if a wealthy candidate contributes more than $350K to his own campaign).  I admit that I think Buckley was wrongly decided (and I agree with Stevens' dissent), but even if we accept Buckley, why is the millionaire's amendment not similar to the requirement that candidates must accept voluntary limits in order to obtain public financing that was upheld under Buckley?   Here is what Alito argues:


  But the choice involved in Buckley was quite different from the choice imposed by §319(a). In Buckley, a candidate, by forgoing public financing, could retain the unfettered right to make unlimited personal expenditures. Here, §319(a) does not provide any way in which a candidate can exercise that right without abridgment. Instead, a candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits. The choice imposed by §319(a) is not remotely parallel to that in Buckley.


  Isn't this the same thing?  If a candidate chooses to spend unlimited personal funds they must forfeit a benefit (public funds) that disadvantages them relative to their opponent, thus placing a "burden" on that right by "the activation of a scheme of discriminatory" public financing.  Either way a candidate must forego their "unfettered right to make unlimited personal expenditures" or give an advantage to their opponent, no?  


  I am sure that I am missing something here.


  Cornell W. Clayton

  C.O. Johnson Distinguished Professor of Political Science

  Director, Thomas S. Foley Institute of Public Policy

  Washington State University


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