More on Public Financing Post Davis v. FEC

Bob Bauer takes issue with my calling his position on public financing plans in light of FEC v. Davis rose-colored. Here is what I originally wrote on this point on the day Davis was decided:

I am often called for advice on how to set up public financing systems on the state and local level, and the particular concern is how to deal with one-sided spending by independent groups. Until now, the cases (with one exception, the Day v. Holohan case from the eighth circuit) suggested that giving special benefits only to candidates who face spending against them would be constitutional. This, I have argued is an effective way of dealing with one-sided spending. But today's opinion (maj. 13) endorses Day and calls all such provisions in public financing systems into question.

I do not believe, as Bob suggests, that "the next generation reform is tied to the good name and effective defense of all the pieces of McCain-Feingold." Indeed, I don't believe that, and I don't think I ever wrote anything in support of the Millionaire's Amendment's constitutionality. But I do believe that the majority's resolution of Davis will lead fair-minded analysts to advise states and localities considering public financing plans that any attempts to counter large independent expenditure campaigns (a big problem in a place like Los Angeles) with additional matching funds only for the candidate attacked are now constitutionally suspect in light of Davis, and there is a good chance that a court looking at one of these plans would strike down that aspect of the plans. I believe that such advice will make it less likely that such plans will be enacted. I further believe that such plans, without escalator clauses, will be much less attractive to candidates on the state and local level. (As with Bob, I don't think this logic necessarily applies on the presidential level.)

Posted by Rick Hasen at July 7, 2008 07:27 AM