Subject: Re: [EL] more on McComish
From: Michael Malbin
Date: 3/29/2011, 3:52 PM
To: Roy Schotland
CC: Election Law <election-law@mailman.lls.edu>


Roy's response, like Rick initial statement, seems to run together two different kinds of policies, both of which unfortunately are being described by the word "matching".  Roy is criticizing Arizona and Maine-style matching, in which candidates receive money when opponents spend above a certain point, or when the candidate faces independent spending.  Let's call this Matching Type-2 because it chronologically came second. Plaintiffs in McComish said this kind of speech deterred or chilled speakers and I was not re-arguing the case. That will be decided soon enough.

But Rick then called into question the older form of matching fund system (Type-1), in which a contribution from a donor is matched by public funds. In the presidential primary system, it is one-for-one.  In New York City it is six for one.  In what Rick called small-donor multiple matching systems, it can be 4-1 or more for donors who give up to $100 or $200 (of the first $100 or first $200, depending upon the program). 

Rick was not conflating the two kinds of systems, but I thought he was eliding.  He correctly pointed out that the Buckley court said matching fund systems with spending limits are OK as long as the system is voluntary, but that mandatory spending limits are not OK.  Creating a system that is all-but-mandatory would be equally illegitimate.   

I had said that removing the spending limits removes this issue for the first, and older, kind of matching fund system.  On second thought, I would also concede that setting the contribution limits for non-participating candidates at a very low level would also raise serious questions.  None of the existing matching (type-1) systems do that to contribution limits, but one could imagine so in a hypothetical.

My real concern here is about common words obscuring different issues.  Justice Kennedy's questions yesterday make it clear that five justices may be ready to overturn the "matching" provisions in Arizona law.  I am hoping that if they do so, they make it clear that they are not talking about public financing per se, or the older forms of matching funds.

Michael Malbin


On Tue, Mar 29, 2011 at 3:04 PM, Roy Schotland <schotlan@law.georgetown.edu> wrote:

Re Michael Malbin’s “the only element that could potentially constrain speech is the spending limit”—

Will Michael’s objection to using “constrain” or “coercion” here, fall away if the word is “chilling”?  Seems to me to be over-arguing to say that there is no “constraining” or no chilling effect if, when I’m deciding whether to spend $X to oppose one or more candidates in a campaign, I gotta take into account that the candidate opposed (possibly each of several candidates, right?) will get $Y to say whatever she/he/they want.  The matching funds might be used to say the opposite of what my group’s ads will say and if so, then at least in some sense and surely in some situations, the matching is not content-neutral.  Or the matching funds might be used for saying stuff that has nothing to do with my ads’ content but helps the candidate(s) my ad opposes.  Won’t my decision be bound to take into account how much $$ is available to the joker(s) I’m opposing, and so how much the match might help him/her/them?

 

Michael, if you believe the match brings no constraint, do you believe it brings no chill?  Even if it does bring some, it doesn’t necessarily follow that the burden is unconstitutional.  I’m one of those who can’t help thinking that constitutional  questions (surely ones like these) involve balancing gains and losses –or putting that another way, competing values-- and that we fare best by fairly noting the benefits and the burdens as we work toward where we come out. 

 

Once we agree that tho there may or may not be what should be labeled “constraint” or “coercion” (a word that coerces the next thoughts, no?), can we agree there’s some chilling effect?  As for whether it’s constitutional for the government to chill “by more speech” as Deborah Hellman says in her wonderfully imaginative posting, it  seems to me unduly dangerous to say that government can’t chill “through sanctions” but can do so by other means.  Isn’t the question whether there is constraint or chill and if so, how significant? 

 

Also: the problem here isn’t only whether candidates can rationally choose to opt out, but also whether there’s a chill that affects spending decisions or ad-content decisions or whom to target in ads.

 

Roy A. Schotland

Professor Emeritus

Georgetown Law Center

600 New Jersey Ave. N.W.

Washington, D.C. 20001

202/662-9098

        fax: -9680

 

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Michael Malbin
Sent: Tuesday, March 29, 2011 1:53 PM
To: 'Rick Hasen'; 'Election Law'
Subject: Re: [EL] more on McComish

It is a very big stretch to use the word "coercion" to describe real-world small-donor multiple-matching systems.  The best known of these is New York City's.  This system does have a bonus provision similar to the one being litigated in McComish, which could be criticized for similar reasons.  Aside from that, the only element that could potentially constrain speech is the spending limit -- and even then only under the hypothetical (not NYC) conditions Rick describes below.  The new presidential and congressional proposals do not contain spending limits at all.  Therefore, no candidate would be coerced to join in, even under the hypothetical.  The big questions with these, therefore, are political rather than constitutional.  

 * * * * * * * * * * * * * * * *
Michael J. Malbin
Executive Director
Campaign Finance Institute 
1667 K Street NW (Suite 650)
Washington, D.C. 20006
PH:  202-969-8890, ext. 28 
FAX: 202-969-5612
email:  mmalbin@CFInst.org
web: http://www.CFInst.org
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Michael J. Malbin
Executive Director
Campaign Finance Institute
1667 K Street NW (Suite 650)
Washington, D.C. 20006
PH:  202-969-8890. ext. 28
FAX: 202-969-5612
email:  mmalbin@CFInst.org
web: http://www.CFInst.org
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