Litigation

In U.S. Spotlight: McComish Impact for Courts

By Peter Hardin

On the eve of oral arguments before the Supreme Court, a New York Times editorial says an Arizona public financing mechanism should stand, and the editorial points to the law’s impact on fair courts.

The Supreme Court will hear arguments Monday morning in McComish v. Bennett, which seeks to throw out the provision. The Times editorial was not alone in commentary spotlighting the case’s implications for state courts.

Justice at Stake has filed an amicus brief and has warned that the case could undermine the courts in four states, where similar laws protect judicial candidates from the impact of special-interest money; the brief was also signed by 13 former state Supreme Court justices and a former trial judge. One national media commentary linked to the JAS brief.

The Times editorial is entitled “Arizona’s Boon to Free Speech.” It says the public financing mechanism provides public funds to qualifying candidates in ways that “support, expand and promote political speech, carrying out a central purpose of the First Amendment.” The editorial adds about the provision:

“It has the support of respected former state judges who know that this and similar public financing mechanisms are the best way to eliminate corruption from state judicial elections. It deserves the Supreme Court?s strong endorsement.”

The case focuses on a Constitutional challenge to ?trigger funds,? which grant additional public money to publicly financed candidates when opposition spending exceeds specified amounts. You can learn more about the provision from earlier Gavel Grab posts and from a JAS resources page about the case.

Critics contend the provision effectively chills the First Amendment rights of privately funded candidates, and the critics argue these candidates may be deterred from higher levels of spending.

The editorial suggests that to the extent justices consider First Amendment arguments, “they should reach the heartening conclusion that more public financing means more political speech in a calibrated way that combats corruption.”

Other commentary was published. A New York Times op-ed by Charles Fried, a U.S. solicitor general under President Ronald Reagan, and Cliff Sloan, was headlined, “Free Speech Worth Paying For.”

In Huffington Post, Doug Kendall, president of the Constitutional Accountability Center, wrote a commentary entitled, “Will the Supreme Court Prevent Citizens United From Being Fixed?”

Kendall provided an online link to the JAS brief and discussed the case’s potential impact for state judicial elections, noting the four states that have pioneered with public financing for these elections:

“McComish could have a profound impact on the viability of these efforts to clean up the selection process for our state courts.”

In the Hartford Courant, Fergus Cullen wrote a column headlined, “Publicly Funding Campaigns is Unfair and Unconstitutional.” He is not identified by occupation, but the web site of the Yankee Institute for Public Policy names a Fergus Cullen as its executive director. That organization has filed an amicus brief that is critical of the Arizona law.

Full post as published by The Gavel on March 26, 2011 (boomark / email).