The Lonely Death of Public Campaign Financing

Harvard Journal of Law & Public Policy, Vol. 33, No. 1, pp. 283-332, Winter 2010

Marquette Law School Legal Studies Paper No. 10-30

51 Pages Posted: 28 May 2010 Last revised: 8 Jun 2010

Richard M. Esenberg

Wisconsin Institute for Law & Liberty

Date Written: December 7, 2009

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.

Keywords: Constitutional Law, Election Law, Campaign Finance, First Amendment, Free Speech

Suggested Citation

Esenberg, Richard M., The Lonely Death of Public Campaign Financing (December 7, 2009). Harvard Journal of Law & Public Policy, Vol. 33, No. 1, pp. 283-332, Winter 2010; Marquette Law School Legal Studies Paper No. 10-30. Available at SSRN: https://ssrn.com/abstract=1616693

Richard M. Esenberg (Contact Author)

Wisconsin Institute for Law & Liberty ( email )

1139 East Knapp Street
Milwaukee, WI 53202
United States
414-727-6367 (Phone)

HOME PAGE: http://www.will-law.org/about-us/rick-esenberg/

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