[EL] McCommish & "triggers"
Joey Fishkin
joey.fishkin at gmail.com
Tue Jun 28 17:11:13 PDT 2011
This is a fascinating discussion, particularly Brad's comments about where
he thinks this law should go in the long term.
Suppose we have a program A2 that matches all contributions of $10 or less
per donor at a 5:1 match. That's it -- there's no qualifying threshold;
there's no spending limit; presumably all candidates opt in to the program.
The program obviously creates some incentives to run a certain type of
campaign: one in which you ask a very large number of people for
small-dollar contributions. Not all candidates will find that kind of
campaign especially congenial, given their profile, issue positions, etc.
For example, suppose you are a candidate who wants to self-fund, spend no
time asking anyone for money, and devote your time and effort to other kinds
of campaign events. You're free to pursue that strategy (and a handful of
people will give you small-dollar contributions anyway, which are matched)
but the end result is going to be that the government spends much, much more
money subsidizing your opponent than it does subsidizing you.
I'm not sure, but I think Brad's view is that this ultimately ought to be
unconstitutional. (Please correct me if I'm wrong.) Why? Because the
government is favoring one type of campaign or "type of candidate" (really,
one campaign strategy) over another. (And how does that serve the state's
interest in preventing quid-pro-quo corruption? Or so I would imagine the
argument would run.) Do those of you who agreed with the result in Arizona
Free Enterprise believe that ultimately, A2 ought to be unconstitutional?
I'm not asking who thinks it's unconstitutional under current precedents,
but rather, what you think the constitutional regime ultimately ought to
look like.
Joey
Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu
On Tue, Jun 28, 2011 at 4:41 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
> Under the first hypothetical, everybody will take the money. Why not?
> Even if you don't make the qualifying numbers, nothing lost.
>
> But the second still attempts to limit speech. It says, if you spend over
> this limit, then we (the state) will work to make sure that you don't
> win. We will try to disadvantage you, by altering our agreement. It amounts
> to a $100,000 penalty for the candidate who decides that more should be
> spent. To take advantage of his "right" to spend more, he has to face a
> 1-way subsidy that benefits only his opponent, while placing no restraints
> on that opponent. That's the problem here.
>
> You can think about this way: Suppose there is no spending limit, and each
> candidate is raising money. Two months before the election, the government
> just gives one candidate, but only 1 candidate, $100,000, no strings
> attached. Constitutional? I don't think so.
>
> As I see it, Regime A, under the usual reading given *Buckley, *is OK. So
> would be a new Regime A1 - you get your $100,000, and agree not to spend
> more than $110,000 K, and your opponent can spend whatever (essentially the
> original matching fund schemes that the Court ruled on in Buckley).
> But Regime B is not. Regime B always places the non-participating candidate
> at a disadvantage compared to the participating candidate. Either the
> candidate must limit his spending, which by definition appears not to be in
> his interest (or he would be a participating candidate), or the candidate
> will be penalized through a 1 way subsidy to his opponent, that comes with
> no trade off for that opponent. That is not a "voluntary" system.
>
> Eventually, however, I do think that the Court will have to realize that
> Burger's dissent in Buckley was correct. Having the government pay for
> campaigns is certainly not wise precisely because of the ability of
> legislators and reformers to cook up endless variations that will help the
> type of candidate they prefer. It is not incompatible with a generally free
> and democratic society, at least not over the short and mid-term, but it is
> ultimately incompatible with the type of accountability and dynamic
> democracy that our Constitution envisions.
>
> *Bradley A. Smith*
> *Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law*
> *Capital University Law School*
> *303 E. Broad St.*
> *Columbus, OH 43215*
> *(614) 236-6317*
> http://www.law.capital.edu/Faculty/Bios/bsmith.asp
>
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu on behalf of
> Elmendorf, Christopher
> *Sent:* Tue 6/28/2011 3:43 PM
> *To:* Daniel Meek, Attorney; law-election at department-lists.uci.edu
>
> *Subject:* Re: [EL] McCommish & "triggers"
>
> Let me state the “release” hypothetical more precisely. (This is, in a
> sense, a variant on the hypo Kagan gave on pp. 17-18 of the slip opinion.
> But it’s even more arresting I think.)
>
>
>
> Regime A: Unconditional Lump Sum Awards for Grassroots Candidates. Under
> this regime, any candidate who raises, let us say, $10,000 in contributions
> of $10 or less is offered a lump sum grant from the state of $100,000. Accepting
> the $100,000 grant does not oblige the candidate to abide by any expenditure
> limitation or restriction on fundraising, other than restrictions (such as
> ordinary contribution limits) that apply to all candidates. The grant of
> funds is unconditional.
>
>
>
> Regime B: Lump Sum Award for Grassroots Candidates, Subject to
> Expenditure Limit and Release. This regime is identical to Regime A,
> except that in order to receive the $100,000 grant, the candidate must also
> agree to limit her total expenditures to $110,000. However, if a
> nonparticipating candidate spends more than $110,000, the expenditure limit
> for the participating candidate is waived, and she may raise and spend
> additional funds on the same terms as all other candidates.
>
>
>
> It’s hard for me to see how Regime B could possibly be said to burden the
> speech of opponents of the participating candidate more than Regime A. The
> only difference between the two regulatory systems is that, in the second
> regime, the participating candidate agrees to self-muffle unless someone
> speaks very loudly (expensively) against her, whereas under Regime A, there
> is no self-muffling that goes with an acceptance of public funds. It is a
> bizarre jurisprudence which holds that the regime that features
> self-muffling creates a *greater* burden on the speech people who *oppose*
> the provisionally muffled candidate than the regime without self-muffling.
>
>
>
>
> (If Regime B is not per-se unconstitutional, then one can argue with a
> straight face for certain other trigger/matching fund arrangements, along
> the lines of what I suggested yesterday.)
>
>
>
> Chris
>
>
> Christopher S. Elmendorf
> Professor of Law
> University of California at Davis
> 400 Mrak Hall Drive
> Davis, CA 95616
> tel: 530.752.5756
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] On Behalf Of Daniel Meek,
> Attorney [dan at meek.net]
> *Sent:* Monday, June 27, 2011 7:48 PM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] McCommish & "triggers"
>
> The *McComish* (*AFECFCPAC*) appears to forbid any trigger which depends
> on the amount of money raised or spent by an opponent. Both of your models
> change the requirements applicable to the participating candidate when the
> non-participating candidate exceeds a certain amount in spending. Thus,
> your models would appear to be vulnerable under *McComish*.
>
> There could be a trigger that in no way depends on the amount of money
> raised or spent by a non-participating candidate. For example, the program
> could provide supplemental funding to any participating candidate who is
> opposed by one or more non-participants and is shown by professional polls
> (say 30 days before the election) to be not more than say 10% of the vote
> away from winning the seat. This would focus the supplemental funds on
> participating candidates who are likely to be able to use the additional
> funds to win and thus allow each supplemental fund grant to be larger than
> otherwise.
>
> Five justices believe that individuals and groups have a First Amendment
> right to spend unlimited sums on campaigns and a First Amendment right not
> to be penalized (relative to a publicly-funded candidate) for the level of
> those expenditures. I have seen no case which holds that anyone has a First
> Amendment right to win an election or to preserve a lead in the polls.
>
> Daniel Meek
> Attorney
> 10949 S.W. 4th Avenue
> Suite 1000
> Portland, OR 97219
> 503-293-9021 phone
> 866-926-9646 fax
> dan at meek.net
>
> On 6/27/2011 1:46 PM, Elmendorf, Christopher wrote:
>
> Here's a question for the list, germane to Rick's "New York City as a
> Model" post: Are "triggers" necessarily dead after McCommish? Consider two
> scenarios.
>
> *1. The "Release" Model*. In this model, the state or city with a public
> financing program simply releases participating candidates from the
> expenditure cap if spending by a nonparticipating candidate exceeds the cap
> for participating candidates. In some sense this "penalizes" speech by the
> nonparticipating candidate, but the penalty is nothing but the restoration
> of the libertarian or quasi-libertarian status quo that would have obtained
> absent the public financing program. Unconstitutional?
>
> *2. The "Matching Funds & Tightened Contribution Limit" Model*. If such
> a "release" from the applicable expenditure limit is not unconstitutional,
> then how about the following variant, which makes use of matching funds.
> Assume a spending limit of $100,000 for participating candidates, and a
> contribution limit of $1000, which applies to all candidates. In the event
> that a nonparticipating candidate spends more than $100,000, the spending
> limit for the participating candidate is raised in an amount equal to the
> "excess" spending by the nonparticipating candidate, provided, however,
> that the new spending must come from contributions of $200 or less, which
> contributions are matched 2:1 with public funds.
>
> Is scenario #2 per-se unconstitutional, because the state is not merely
> releasing the participating candidate from spending limits (restoring the
> libertarian baseline), but rather is subsidizing speech antagonistic to the
> speech of the nonparticipating candidate exercising her First Amendment
> rights? But what if it's actually much more difficult under scenario #2 for
> participating candidates to combat the speech of nonpaticipating candidates
> than in scenario #1? In that case, it's hard to see how the "burden"
> placed on constitutionally protected speech under scenario #2 could rise to
> the level of constitutional significance, assuming that there's no
> constitutional objection to scenario #1. (On the other hand, it would be no
> easy task for the courts to make this relative burden judgment . . .)
>
> Thoughts?
>
> -- Chris
>
> Christopher S. Elmendorf
> Professor of Law
> University of California at Davis
> 400 Mrak Hall Drive
> Davis, CA 95616
> tel: 530.752.5756
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [
> rhasen at law.uci.edu]
> *Sent:* Monday, June 27, 2011 1:12 PM
> *To:* law-election at uci.edu
> *Subject:* [EL] more news 6/27/11
>
> “New York City as a Model?” <http://electionlawblog.org/?p=19748>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19748> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> I have written this post<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/new-york-city-as-a-model-for-campaign-finance-laws>for the
> *New York Times’ *“Room for Debate” discussion, “Where to Now on Public
> Financing?” Other contributors so far are Guy Charles<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/the-courts-battle-of-ideology>,
> Brad Smith<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/the-courts-separation-of-campaign-and-state>,
> and Zephyr Teachout<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/matching-funds-what-the-court-didnt-touch>
> .
>
> My contribution begins:
>
> It wasn’t all bad news for campaign finance reformers in the Supreme Court
> decision stripping Arizona’s matching funds provision from its law giving
> public financing for state candidates. Among other things<http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court>,
> the court confirmed that whether governments enact public financing is “not
> our business.” The issue is how the plans provide the financing, and the big
> question now is whether New York City’s system can become a model for the
> country.
>
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19748&title=%E2%80%9CNew%20York%20City%20as%20a%20Model%3F%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> Meanwhile, in Chicago <http://electionlawblog.org/?p=19745>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19745> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Blagojevich guilty<http://www.nytimes.com/2011/06/28/us/28blagojevich.html?hp>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19745&title=Meanwhile%2C%20in%20Chicago&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12> | Comments Off
> Investigation Coming to Wisconsin Supreme Court?<http://electionlawblog.org/?p=19740>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19740> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Howard <http://howappealing.law.com/062711.html#042137>has the update.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19740&title=Investigation%20Coming%20to%20Wisconsin%20Supreme%20Court%3F&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, judicial
> elections <http://electionlawblog.org/?cat=19> | Comments Off
> Meanwhile, at the FEC <http://electionlawblog.org/?p=19737>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19737> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The Republican Commissioners take another step away<http://electionlawblog.org/wp-content/uploads/11044293607.pdf>from effective disclosure.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19737&title=Meanwhile%2C%20at%20the%20FEC&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
> What Does Today’s Opinion Mean for NYC and FENA?<http://electionlawblog.org/?p=19734>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19734> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Stay tuned. <http://www.nytimes.com/roomfordebate>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19734&title=What%20Does%20Today%E2%80%99s%20Opinion%20Mean%20for%20NYC%20and%20FENA%3F&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “Chief Justice Roberts to Arizona: Take Your Thumb Off the Scale!”<http://electionlawblog.org/?p=19731>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19731> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Hoersting<http://www.nationalreview.com/bench-memos/270581/chief-justice-roberts-arizona-take-your-thumb-scale-stephen-m-hoersting>at Bench Memos.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19731&title=%E2%80%9CChief%20Justice%20Roberts%20to%20Arizona%3A%20Take%20Your%20Thumb%20Off%20the%20Scale%21%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “Is the Court Energized by Its Critics?”<http://electionlawblog.org/?p=19727>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19727> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Paul Clement <http://www.slate.com/id/2297410/entry/2297808/>on the
> Arizona case [Corrected post, original post said that this Breakfast Table
> entry was written by Dahlia Lithwick].
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19727&title=%E2%80%9CIs%20the%20Court%20Energized%20by%20Its%20Critics%3F%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “The Arizona Campaign Finance Law: The Surprising Good News in the
> Supreme Court’s New Decision” <http://electionlawblog.org/?p=19725>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19725> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> I have written this commentary<http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court>for
> *The New Republic*. It begins:
>
> Campaign finance laws have now gone 0 for 5 in the Roberts Court. Monday’s
> Supreme Court decision<http://www.supremecourt.gov/opinions/10pdf/10-238.pdf>striking down the matching funds portion of Arizona’s voluntary public
> financing law—which provided extra public financing for candidates facing
> free-spending opponents or major outside spending—was no surprise. Indeed, I
> predicted <http://electionlawblog.org/archives/011095.html> laws like
> Arizona’s were doomed back in 2008, on the day the Court struck down<http://scholar.google.com/scholar_case?case=5092223370493741422&q=davis+v.+federal+election+commission&hl=en&as_sdt=2,5&as_vis=1>a portion of the McCain-Feingold law which raised contribution limits for
> candidates facing millionaire opponents. The Roberts Court saw both laws as
> impermissibly trying to level the electoral playing field. Since 2005, the
> Court has also struck down<http://scholar.google.com/scholar_case?case=13551506278581494953&hl=en&as_sdt=2&as_vis=1&oi=scholarr>Vermont’s campaign contribution limits as too low, narrowly
> interpreted<http://scholar.google.com/scholar_case?case=12228748998297097461&q=wisconsin+right+to+life+v+fec&hl=en&as_sdt=2,5&as_vis=1>the McCain-Feingold rules governing corporate campaign spending, and then
> dealt a death blow to those limits in its most controversial decision to
> date, *Citizens United<http://scholar.google.com/scholar_case?case=6233137937069871624&q=citizens+united+v.+fec&hl=en&as_sdt=2,5&as_vis=1>
> *.
>
> Yet today’s decision brings three pieces of unexpected good news to those
> of us who believe that reasonable campaign finance regulation is not only
> constitutional, but essential to prevent corruption and ensure fairness in
> our democracy.
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19725&title=%E2%80%9CThe%20Arizona%20Campaign%20Finance%20Law%3A%20The%20Surprising%20Good%20News%20in%20the%20Supreme%20Court%E2%80%99s%20New%20Decision%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> More Statements on McComish <http://electionlawblog.org/?p=19722>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19722> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Campaign Finance Institute<http://www.cfinst.org/Press/PReleases/11-06-27/CFI_Statement_on_McComish_Decision.aspx>;
> Demos<http://www.demos.org/press.cfm?currentarticleID=D1F2E593-3FF4-6C82-551601FCFF7BAE2A>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19722&title=More%20Statements%20on%20McComish&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> IJ Wins, with Links Galore on Arizona Case<http://electionlawblog.org/?p=19719>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19719> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See here<http://www.makenolaw.org/blog/8-government/205-free-speech-wins-ij-a-goldwater-score-major-supreme-court-victory>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19719&title=IJ%20Wins%2C%20with%20Links%20Galore%20on%20Arizona%20Case&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> Timely <http://electionlawblog.org/?p=19716>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19716> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> A Special Edition of Gavel to Gavel looks at: Public Financing of Judicial
> Campaign<http://www.ncsconline.org/D_Research/gaveltogavel/Public%20Financing%20Special%20Edition.pdf>
> s.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19716&title=Timely&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, judicial
> elections <http://electionlawblog.org/?cat=19> | Comments Off
> News and Reactions on AZ Case <http://electionlawblog.org/?p=19712>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19712> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> *NY Times*;<http://www.nytimes.com/2011/06/28/us/politics/28campaign.html>
> AP<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_CAMPAIGN_FINANCE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>;
> *SF Examiner*<http://www.sfexaminer.com/blogs/beltway-confidential/2011/06/supreme-court-overturns-arizona-campaign-finance-law>;
> CCP<http://www.campaignfreedom.org/newsroom/detail/supreme-court-strikes-down-matching-funds-provision>;
> Brennan Center<http://www.brennancenter.org/content/resource/supreme_court_strikes_down_trigger_funds_but_public_financing_laws_remain_i>;
> Justice at Stake <http://www.gavelgrab.org/?p=22009>; Democracy21<http://bit.ly/meDJWQ>;
> Heather Gerken<http://balkin.blogspot.com/2011/06/campaign-finance-and-doctrinal-death.html>
>
> More to come.
>
> My New Republic piece is being edited and will be up shortly.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19712&title=News%20and%20Reactions%20on%20AZ%20Case&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> My Thoughts on Today’s Ruling are Coming<http://electionlawblog.org/?p=19709>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19709> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> My initial thoughts will appear at *The New Republic* and I’ll be linking.
>
> I actually see a couple of silver linings.
>
> Stay tuned….
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> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> Justice Kagan’s Response on the Website Point<http://electionlawblog.org/?p=19706>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19706> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> “Finally, the Court remarks in a footnote that the Clean Elections
> Commission’s website once stated that the ‘‘Act was passed by the people of
> Arizona . . . to level the playing field.’ Ante, at 24, n. 10. I can
> understand why the majority does not place much emphasis on this point.Some
> members of the majority have ridiculed the practice of relying on subsequent
> statements by legislators to demonstrate an earlier Congress’s intent in
> enacting a statute. See, e.g., Sullivan v. Finkelstein, 496 U. S. 617,
> 631–632 (1990) (SCALIA, J., concurring in part); United States v. Hayes, 555
> U. S. 415, 434–435 (2009) (ROBERTS,
> C. J., dissenting). Yet here the majority makes a much stranger claim: that
> a statement appearing on a government website in 2011 (written by
> who-knows-whom?) reveals what hundreds of thousands of Arizona’s voters
> sought to do in 1998 when they enacted the Clean Elections Act by
> referendum. Just to state that proposition is to know it is wrong.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19706&title=Justice%20Kagan%E2%80%99s%20Response%20on%20the%20Website%20Point&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> More Gold from J. Kagan <http://electionlawblog.org/?p=19702>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19702> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> “Pretend you are financing your campaign through private donations. Would
> you prefer that your opponent receive a guaranteed, upfront payment of
> $150,000, or that he receive only $50,000, with the *possibility*—a
> possibility that you mostly get to control—of collecting another $100,000
> somewhere down the road? Me too.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19702&title=More%20Gold%20from%20J.%20Kagan&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> And this from J. Kagan <http://electionlawblog.org/?p=19699>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19699> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> “If an ordinary citizen, without the hindrance of a law degree, thought
> this result an upending of First Amendment values, he would be correct.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19699&title=And%20this%20from%20J.%20Kagan&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> The Dissent’s Ouch! <http://electionlawblog.org/?p=19696>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19696> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Justice Kagan: “So they are making a novel argument: that Arizona violated
> *their* First Amendment rights by disbursing funds to *other* speakers
> even though they could have received (but chose to spurn) the same financial
> assistance. Some people might call that *chutzpah*.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19696&title=The%20Dissent%E2%80%99s%20Ouch%21&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> Ouch! <http://electionlawblog.org/?p=19693>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19693> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> A fn. in CJ Roberts’ opinion: “Prior to oral argument in this case, the
> Citizens Clean Elections Commission’s Web site stated that “ ‘The Citizens
> Clean Elections Act was passed by the people of Arizona in 1998 to level the
> playing field when it comes to running for office.’ ” AFEC Brief 10, n. 3
> (quoting http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr.
> of OralArg. 48. The Web site now says that “The Citizens Clean Elections
> Actwas passed by the people of Arizona in 1998 to restore citizen
> participa-tion and confidence in our political system.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19693&title=Ouch%21&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> Arizona Free Enterprise Club’s Freedom PAC v. Bennett (McComish) Decided<http://electionlawblog.org/?p=19690>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19690> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The opinion is here<http://www.supremecourt.gov/opinions/10pdf/10-238.pdf>.
> It is 5-4, as expected, striking down the matching funds provision.
>
> More to come after I’ve read and analyzed the 68 pages.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19690&title=Arizona%20Free%20Enterprise%20Club%E2%80%99s%20Freedom%20PAC%20v.%20Bennett%20%28McComish%29%20Decided&description=>
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org
>
>
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