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.

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
* * * * * * * * * * * * * * * *