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Esenberg on FEC v. Davis

By Lawrence Solum

Richard M. Esenberg (Marquette University - Law School) has posted The Lonely Death of Public Campaign Financing (Harvard Journal of Law & Public Policy, Vol. 33, No. 1, pp. 283-332, Winter 2010) on SSRN. Here is the abstract:

This paper argues that the recent decision of the United States Supreme Court in FEC v. Davis renders the idea of public financing of elections largely irrelevant. In Davis, a majority of the Court saw the provision of a "compensatory" benefit to the opponent of a candidate who spends more than a designated amount as a burden on speech. That burden, moreover, cannot be justified by an interest in "leveling the playing field." The paper argues that Davis? rationale is equally applicable to candidates facing independent expenditures. It suggests that a public financing system cannot be designed in a way that provides asymmetrical funding (often called "rescue" or "fair fight" funds) to those whose candidacies are criticized by such expenditures.

If these efforts to level the playing field are not permitted, public financing of campaigns is likely to be either undesirable (because it will drive money to independent expenditures) or irrelevant (because such independent expenditures will swamp any conceivable amount of public funding). I argue that this is not an undesirable development, suggesting that we move from a model of control to competition with respect to the funding of political campaigns.

Full post as published by Legal Theory Blog on June 01, 2010 (boomark / email).