Litigation

Are "Clean Election" Schemes Headed to the Supreme Court?

By Richard Esenberg

In a recent piece in the Harvard Journal of Law & Public Policy, I predicted the "lonely death" of public campaign financing. The point was that public financing schemes that provided what are often called "rescue funds," i.e., additional public money for candidates who face an opponent (or independent opposition) that has spent more than some triggering amount. So, for example, if I am a publicly financed candidate who is running against an internet billionaire or a well financed independent campaign against me (undoubtedly by some group that is for "the children"), I can get additional public money to match the expenditures against me.

My argument was that these asymetrical financing systems are probably uconstitutional and that, as a result, any public financing system will be dwarfed by self financed candidates, independent expenditures or, increasingly, opposition campaigns whose use of the internet and bundling is likely to dwarf any politically feasible amount of public financing.

The argument was based, in significant part, on the Supreme Court's decision in Davis v. FECin which the Court struck down the McCain-Feingold's Millionaire Amendment - a provision that, among other things, raised the campaign contribution limits for those facing self-financed candidates who exceed a certain expenditure amount. The majority saw this as an impermissable burden on the speech rights of the self financing candidate.

Some argue that providing additional funding is different than raising contribution limits. I don't think so and explain why in the Harvard JL & PP piece.

We may soon find out. In McComish v. Bennett, the Ninth Circuit reversed a district court decision invalidating the rescue funds provisions (referred to as trigger funds) of Arizona's Clean Elections Act.

But the Supreme Court has stayedthe mandate of the Ninth Circuit (leaving the district court's injunction against the disbursement of the trigger funds in place) pending resolution of any petition for certiorari.

I see a reversal of the Ninth Circuit. Given the Court's willingness, in the zero sum game of an election, to see a benefit to one's opponent that is triggered by constitutionally protected speech as a burden on that speech and its rejection (in both Davis and Citizens United) of the idea that burdens on speech can be justified by a desire to level the playing field, I continue to believe that rescue fund schemes are extremely vulnerable to constitutional challenge.

Cross Posted at Marquette University Law School Faculty Blog.

Full post as published by Point of Law on June 17, 2010 (boomark / email).