Davis v. FEC

michael curtis curtism at bellsouth.net
Sun Jun 29 18:55:00 PDT 2008

The Davis opinion may be much more troubling than the Pildes blog suggests.  That is so if it implies that public finance statutes that provide additional limited matching funds for candidates outspent by their opt out opponents or by independent groups plus their opponent are unconstitutional.  The NC legislature for example provides public funding for judicial candidates and such a catch up provision.  without some such provision the publicly financed candidate is in danger of being overwhealed by an opponent who opts out.  Any thoughts as to the meaning of Davis for such statutes?  

Michael Kent 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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