To: 'Rick Hasen' <rhasen@law.uci.edu>, 'Election Law'
<election-law@mailman.lls.edu>
Reply-to:
"mmalbin@cfinst.org"
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 * * * * * * * * * *
* * * * * *
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick
Hasen Sent: Tuesday, March 29, 2011 1:29 PM To: Election
Law Subject: [EL] more on McComish
Here's an
update to my earlier
post today about McComish:
UPDATE: A few readers
have pointed out to me that the exchange between the Chief and Brad Phillips
concerned a hypothetical in which a state provides matching funds based on
non-participant and independent expenditure group's spending but where the match
would be 2 to 1 rather than 1 to 1. I understood that to be the point of the
Chief's hypothetical too, but I did not make that clear in my post above. More
importantly, Brad's point about coercion and voluntariness would apply to a
system that gave very generous public financing grants as well, including one
that gave very generous multiple matches to small donations (not triggered at
all by opposition spending). As Buckley and the First Circuit Daggett
case make clear, a public financing system which is very generous--when viewed
in the context of the entire plan, including contribution limits for
non-participating candidates---may be unconstitutional if a candidate does not
feel she can rationally choose to opt out.
-- 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@law.uci.edu