Marquette University Law School Faculty Blog

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.

The Wisconsin Supreme Court: It’s June Madness!

Post author:Richard M. Esenberg
Post published:June 17, 2010
Post category:Wisconsin Supreme Court

Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel’s Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.

We can expect to see a lot from the court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.

There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment, Milwaukee’s sick pay ordinance, and the legislature’s $ 200 million dollar “raid” on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.

I expect to be busy.

Cross posted at Shark and Shepherd.

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.