Davis v. FEC

Sanford Levinson SLevinson at law.utexas.edu
Thu Jun 26 15:22:52 PDT 2008

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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