A Tale of Two Blawgs

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Category: First Amendment, Legal Scholarship, Political Processes & Rhetoric
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It may be a new story that is already old, but here’s my own example of the role blogs can play in legal scholarship. A post on my personal blog is turning into a paper. But before I can complete the paper (I was well into another project), a case comment in the Harvard Law Review has responded to my idea.

I am working on a paper discussing the potential implications of the Supreme Court’s decision last term in Davis v. FEC, striking down the “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act (more commonly known as the McCain-Feingold Act).  This provision increased the campaign contribution limits for candidates facing an opponent who has self-funded in excess of a trigger amount. So, if a wealthy self-financing candidate (like our own Sen. Herb Kohl or Rep. Steve Kagen) spends a sufficient amount of his or her own funds, the amount that individuals and party committees are allowed to contribute to his or her opponent increases. The Court, in a 5-4 decison, found that this provision is an unconstitutional burden on the self-financing candidate’s free speech rights.

The essential point of the paper, made on the very day that the decision came down on my personal blog (note to the Dean: see your summer research dollars at work), is that, when considered with the Court’s decision in Wisconsin Right to Life v. FEC during the previous term, Davis may well render public financing schemes unworkable.

This is because WRTL offers broad protection for issue advocacy directed toward a candidate for federal office. McCain-Feingold prohibits the use of corporate and union treasury funds for “electioneering communications” during certain periods immediately preceding a federal election. But the controlling opinion in WRTL holds that this prohibition can only be applied to ads that are incapable of being construed as anything other than a issue advocacy. This paves the way for substantial independent expenditures with funds from corporate and union donors.

To address this, public financing schemes are often asymmetrical. i.e., they provide additional funding to candidates facing opponents who, through self-funding or the rejection of public funding, spend in excess of a specifed trigger point. They may also provide additional funding to candidates against whom more than a specified amount of independent expenditures have been made.

My argument is that Davis calls these schemes into question.  If an increase in contribution limits improperly burdens the rights of self-financing candidates, then wouldn’t the provision of additional public funds do so as well? And, if additional funds impermissibly burden the rights of self-financers, why don’t they also impair the rights of independents who wish to engage in election-time issue advocacy?

For this reason I called Davis the most important decision of the day. (A somewhat celebrated case called Heller was also announced on June 26, 2008).

There are arguments against reading Davis in this way, and I deal with them in the paper. One (although not, I think, the strongest) relies on the distinction between government subsidies and penalties. It is well established that, at least in certain circumstances, the government can fund certain speech without also funding analogous speech. It can, for example, fund only family planning clinics that do not counsel patients about abortion. The Harvard author believes that this saves asymmetrical public financing. The government is simply enhancing the “speech power” of those who choose public financing.

The problem is that enhancing “speech power” is precisely what Davis involved. Providing money to one’s opponent (or to a candidate that one seeks to criticize through issue advocacy) burdens speech in a way that the simple absence of a subsidy for one’s own speech does not. I may turn out to be wrong about Davis‘s implications, but this shouldn’t be the reason.

(N.b., The comment notes that Rick Hasen expressed a similar view at the Election Law Blog, and I see that, allowing for time zone differences,  he appears to have beaten me by three hours and twenty seven minutes. These days you lose if you snooze.)

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