Davis and the Viability of Public Financing Programs

In my initial post on Davis v. FEC, I wrote the following about the case’s potential impact on public financing programs: “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 further clarified my position in a series of exchanges with Bob Bauer.
Paul Ryan later posted a more optimistic reading of Davis and public financing, which, as Jim Bopp pointed out on the election law listserv, failed to even mention the Supreme Court’s endorsement in Davis of Day v. Holohan. Now comes word via the new New Jersey Election Law and Campaign Finance blog (or NJELCFB, for short!), that the New Jersey Office of Legislative Services reads Davis’s endorsement of Day the way I do, seeing a serious constitutional issue arising from these additional matching fund provisions.
To me, this is bad news, but I call them like I see them. As I told Eliza Newlin Carney, I think many in the reform community have put on rose-colored glasses about the future of campaign finance regulation in the hands of the Roberts Supreme Court.
There is one downside of being intellectually honest about what is going on at the Supreme Court. My statements have already been used in a Center for Competitive Politics letter from its development director to its supporters:

    I have included with this letter a post from law professor Rick Hasen’s blog with his reactions to the Davis decision and the implications it has for these schemes. Hasen is a leading advocate of campaign “reforms” that stifle the First Amendment. Here at CCP we are always excited when people like Hasen are nervous about the future of their “reforms.”

See also David Keating of the Club for Growth, extolling my pessimism as a good sign for the future.
UPDATE: Bob Bauer weighs in on the CCP letter.

Share this: