Something To Be Said for Davis?

A Note on the Fate of the Millionaire’s Amendment and the Future of Public Financing

     The New York Times today surveyed the Court term with mixed feelings and worries about the future.  Campaign finance did not make the lists of the good or of the bad.  For this paper, a hardy editorial voice for conventional reform positions, the omission is something of an event.  The possibility of an oversight cannot be discounted, but neither can the chance that the Times did not really care all that much about the Millionaire’s Amendment.  Should it?

SpeechNow Put Off for a While: a Damage Report

      Judge Robertson's decision against SpeechNow will not in the long run have done this organization much harm, and it may have done it a favor.  He did not make the strongest case for rejecting SpeechNow's claim:  his opinion highlighted that case's difficulties, particularly the ones that the Supreme Court—speaking here of the majority deciding cases like Davis—may pounce on.  SpeechNow has lost, but it has not lost as much as it could have, since the damage was limited to the outcome and is not a product of the power of Judge Robertson's argument. 

Money as Speech—or Is It the Sound of Incumbents Speaking?

     On Balkinization is now found two recent postings of interest to anyone interested in theories of campaign finance regulation.  Deborah Hellman returns to the old favorite, “Is Money Speech?”, and gives her reasons why we should not think so.  Then Rick Pildes follows with thoughts about whether campaign finance laws are necessarily infected with incumbent self-interest.

Justice Alito for the Court, in Davis

     What first strikes a reader of the Alito opinion for the Court in Davis v. FEC is that reasons are given but not deeply, and not within clear, discernible doctrinal lines.  The argument, moreover, seems caught between two directions—in one, the millionaire experiences a "penalty" or "burden" on her own speech, and in the other, the injury is less direct and flows from the distortion that government regulation introduces into the competitive struggle between two candidates.

Justice Stevens in Dissent, in Davis

    Justice Stevens’ dissent is a woefully unsatisfactory performance, and it is, in places, bizarre.  If this is the best possible defense of this provision, then the dissent as much as the majority opinion explains why the Millionaire’s Amendment was doomed.  And this dissent, like Souter’s in Wisconsin Right to Life or Breyer’s Active Liberty suggests that the Court’s progressive minority continues to flounder in applying or recasting constitutional doctrine in this field.

Also...

Davis v. FEC—First Thoughts on the Demise of the Millionaire’s Amendment  6/26/08

Schools of Thought and the Undercurrents of Change in Reform Debate  6/23/08

Small Donors and Their Experience  6/20/08

The State of Election Reform and the Sources of Legal Conflict: Old Assumptions and Hopes for the Way Forward  6/18/08

FEC Commissioners and Their "One Term"  6/17/08

The Courts and the FEC: Sad Lessons To Be Drawn from the Shays Case  6/16/08

John McCain—Giving Up His Commission as “Referee” of Negative Speech  6/13/08

Determining Legacy and Influence in the Appraisal of Justice O’Connor  6/11/08

The Complexity of the "Equalization Objective" of the Millionaire’s Amendment  6/10/08

Voters and the Question of their “Confidence in the System”  6/9/08