Esenberg on the future of tax financed campaigns

As CCP looks to the future, we seek increased contributions from scholars interested in campaign finance issues. To this end, we are making a concerted effort to expand our Academic Advisory Board. One of our newest Academic Advisors is Professor Richard M. Esenberg, a Visiting Assistant Professor of Law at Marquette University Law School. He is the author of numerous law review and magazine articles on a variety of topics. Before coming to Marquette, Esenberg served as Vice President and General Counsel of Rite Hite Holding Corporation in Milwaukee, Wis. He has experience as lead trial counsel in major intellectual property and advertising litigation and as trial counsel in numerous public law cases.

In early 2010, Esenberg authored “The Lonely Death of Public Campaign Financing,” published in the winter 2010 edition of the Harvard Journal of Law and Public Policy. In the article, Esenberg argues that, in the wake of two major campaign finance decisions by the Roberts Court, attempts to implement tax financed elections are futile. He continues by making a greater point about the underlying principles that should guide an electoral system.

Informed by a brief summary of the evolution of the distinction between expenditures and contributions and the rationales given by the Supreme Court as possible justifications for regulation, Esenberg examines the constitutional protection given to independent expenditures for issue advocacy, as a result of the Court’s decision in FEC v. Wisconsin Right to Life (WRTL II). Wisconsin Right to Life, Inc. is a nonprofit pro-life organization that desired to run issue ads addressing the filibuster of Bush Administration judicial nominees during the blackout period instituted by the Bipartisan Campaign Reform Act (BCRA). In WRTL II, the Court held that BCRA’s provision restricting issue ads in the months preceding an election was unconstitutional. In general, the Court erred on the side of the speaker, believing that regulation of issue ads were not justified by the governmental interest in preventing real or perceived corruption or in encouraging a more equal system of campaign finance. Accordingly, most forms of independent expenditures were beyond limitation.

In a subsequent decision, Davis v. FEC, the Court invalidated a section of BCRA, known as the “Millionaire’s Amendment,” which both raised contribution limits and lifted caps on coordinated party expenditures for taxpayer-financed candidates facing a self-financed candidate with a financial advantage exceeding a certain trigger amount. These relaxed limits were to remain until the self-financed candidate’s advantage was eliminated. The Court held that this constituted a violation of an individual’s First Amendment right to spend their own money to advocate their own election. The Court’s decision had a detrimental effect on most taxpayer financing systems, which contain similar schemes.

Esenberg agrees with the Court’s decisions in both cases, as the principles underlying both WRTL II and Davis have a longstanding pedigree in election law jurisprudence. He argues that, although regulation for the purpose of avoiding actual or possible corruption remains necessary, the Court’s recent decisions reject the restriction of speech for the pursuit of a more “egalitarian” campaign finance system. Instead of entrusting rulemaking of the electoral process to elected officials, Esenberg believes it is better to allow broad public participation. As competing factions naturally have differing electoral advantages, permitting them to engage in unfettered competition is more desirable than allowing self-interested government officials to legislate perceived unfair advantages. Ultimately, Esenberg acknowledges that the implication of the principles in WRTL II and Davis may remind us that democracy may be better served by competition than by control.

Esenberg’s article, “The Lonely Death of Public Financing,” can be found here.