First Amendment – Page 14 – Marquette University Law School Faculty Blog

Gableman Complaint is Dismissed

Post author:Richard M. Esenberg
Post published:July 8, 2010
Post category:Constitutional Interpretation First Amendment Political Processes & Rhetoric Wisconsin Supreme Court

The Judicial Commission announced today that it is discontinuing prosecution of its complaint against Justice Michael Gableman. Quite apart from the merits of the complaint, this seems like the right thing to do given the deadlock on the Court and the particular positions taken by the Abrahamson and Prosser groups. As I explained here and here, there seems to be no way that further proceedings could be expected to break the impasse.

An interesting constitutional question was embedded within the writings of the Prosser and Abrahamson groups.

Curb Your Enthusiasm

Post author:Richard M. Esenberg
Post published:June 17, 2010
Post category:Election Law First Amendment Political Processes & Rhetoric

I’ve met Democratic Party Chair Mike Tate. Mike was nice enough to speak to my Election Law clase and was candid, informative and entertaining. I have to confess that I like the guy.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren’t playing beanbag. As a consultant on my side told me, we can’t play nice when the other guys play nasty. I couldn’t argue with her. It’s a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

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

Post author:Richard M. Esenberg
Post published:June 17, 2010
Post category:Constitutional Interpretation Election Law First Amendment

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.