Further on in his post, the Professor wrote that “The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field.” This is good, restrictions on free speech to “level the playing field” almost certainly are unconstitutional, but financing more speech to “level the playing field” is a very different thing. Again, if private funding of one person’s speech does not restrict another person’s free speech rights, public funding for the same purpose does not either.

Although the consequence of these Public Funding efforts may be what Professor Esenberg suggests later in his post, he fails to consider that there may be ways to neutralize the effects of independent attack ads without the corrupting influence of monetary donations to candidates. Just to name one, the State could require, as a condition for getting on the ballot, participation in frequent, televised, structured debates and “town hall” meetings around the State. This would amount to free televised advertising of all candidates, enable voters to compare them side-by-side and see past the useless and distracting TV campaigns. I am sure there are other things that could be done to help challengers and incumbents overcome money restrictions and independent attack ads. If “money seeks its own level” then we need to reduce dependency on money for successful State-wide campaigns, especially for Judicial candidates.

Perhaps the solution to the invidious effects of fund-raising and independent efforts is something outside the sphere of money itself. Perhaps the moles keep winning because we keep making fund-raising the most important criteria of “viable” candidacy. To defeat the moles, maybe all we have to do is unplug the (money) machine.