Are “Clean Election” Schemes Headed to the Supreme Court?

In a recent piece in the Harvard Journal of Law & Public Policy, I predicted the “lonely death” of public campaign financing. The point was that public financing schemes that provided what are often called “rescue funds,” i.e., additional public money for candidates who face an opponent (or independent opposition) that has spent more than some triggering amount. So, for example, if I am a publicly financed candidate who is running against an internet billionaire or a well financed independent campaign against me (undoubtedly by some group that is for “the children”), I can get additional public money to match the expenditures against me.

My argument was that these asymetrical financing systems are probably unconstitutional and that, as a result, any public financing system will be dwarfed by self financed candidates, independent expenditures or, increasingly, opposition campaigns whose use of the Internet and bundling is likely to dwarf any politically feasible amount of public financing.

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Casey as Conscience Protection?

This past weekend I attended (and delivered a paper) at the annual meeting of University Faculty for Life at Catholic University’s Columbus School of Law. My paper had to do with Justice Breyer’s concept of Active Liberty and current notions of popular constitutionalism and abortion rights,  focusing on the potential changes in the Roe/Casey framework suggested by (if not expressly called for in) Carhart v. Gonzales. But I’ll discuss that some other time.

Right now, I want to highlight a paper by Catholic’s Mark Rienzi. He argues that Casey‘s “sweet mystery” of life passage ought to create a constitutional right on the part of health care providers not to participate in abortion or to prescribe or administer what they regard to be abortifacients. But I think his argument has the potential to move beyond that and that is both its strength and its weakness.

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You Have the Right to Remain Silent

This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don’t agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I’d draft, the devil is in the details.

On more fundamental level, it doesn’t seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.

I would have preferred to discuss  Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which Professor Cole represents the plaintiffs.

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