Abstention in Spargo case?

Back on August 13, 2003, Howard A. Levine and Roy A. Schotland wrote an oped in the New York Law Journal suggesting that the Second Circuit abstain from deciding the Spargo case, involving the constitutionality of an aspect of New York's code of judicial conduct. The oped, called "Judicial Campaign Rules," is available here for those with a Lexis-Nexis subscription.

Although the parties did not pay attention to abstention in the briefs, apparently it was the focus of much of the Second Circuit's oral argument last month.

The Millionaires' Provision of BCRA (McCain-Feingold)

The New York Times today features this article on a provision of the BCRA that raises individual contribution limits for federal candidates running against self-financed opponents. Although this provision was challenged in the lower court, the lower court judges held that the challenge was not yet ripe to be decided.

One troubling aspect of the provision is that it may be used to argue against the constitutionality of the contribution limits imposed by Congress. As the Times article explains, the normal $2,000 contribution limit has gone to $12,000 in the Illinois Senate race because of one candidate's self-financing. If a contribution limit can go as high as that, what does that say about the need for the $2,000 contribution limit to prevent corruption or the appearance of corruption? In the litigation over Proposition 208 in California, the district court judge used a variation in contribution limits along similar lines to strike down the lower contribution limit as not tailored enough to prevent corruption.

I think the best answer to this argument is that Congress is trying to achieve multiple goals with the legislation, and it determined to sacrifice something in terms of the danger of corruption or the appearance of corruption in order to assure competitive races when self-financed candidates are involved. (Of course, in my view, the better long-term solution to this problem is for the Supreme Court to overturn that aspect of Buckley v. Valeo preventing legislatures from limiting the spending of millionaires on their own campaigns.)

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org