Litigation

Tough Legal Future for Public ?Triggered? Funds?

By Peter Hardin

The legal future isn’t promising for certain provisions in state laws to help publicly financed candidates get a more equal footing with wealthy self-financed candidates who outspend them.

That’s one thrust of a New York Times editorial about an appeals court ruling this week that struck down such “trigger provisions” in Connecticut’s public financing law for campaigns (see Gavel Grab). The editorial was headlined, “Send in the Tycoons.”

“On Tuesday,” the editorial said, “a federal appeals court made it even easier for wealthy candidates to dominate politics in Connecticut, and a series of lawsuits in other states seemed designed to provoke a similar decision from the Supreme Court.”

While the Supreme Court has not ruled on controversial provisions like the ones in Connecticut’s law, it has been asked to consider the constitutionality of a provision in Arizona law that was upheld by another appeals court.

Even before it has decided whether to hear that appeal, the Supreme Court, according to the Times editorial, “went out of its way to intervene in the Arizona gubernatorial race, cutting off triggered funds to candidates who were expecting them. The direction of the court?s thinking, assuming it decides to rule in these cases, seems clear.”

In further coverage of this week’s decision by the 2nd U.S. Circuit Court of Appeals, an Associated Press article reported that the 2nd Circuit  “further handicapped the concept of giving extra money to publicly funded candidates who are outspent by well-financed opponents.”

Tuesday’s ruling arrived as challenges are under way to similar laws in Wisconsin and Florida, said Jeff Patch of the Center for Competitive Politics, a group that opposes public financing of campaigns.

The 2nd Circuit’s reasoning was based on a 2008 decision by the U.S. Supreme Court overturning the “millionaire’s amendment” in the McCain-Feingold campaign finance law. That provision boosted limits on contributions to a candidate for congress if a wealthy opponent spent more than $350,000 from his own pocket on his campaign.

The appeals court  said Connecticut’s supplemental campaign grants put “a substantial burden on the exercise of the First Amendment” rights of advocacy groups and of self-financed candidates, the Hartford Courant reported.

The Brennan Center for Justice, in a statement about Tuesday’s decision, noted that the court also “broadly upheld the constitutionality of public financing systems.” The group is a Justice at Stake partner.

Tara Malloy of the Campaign Legal Center, another JAS partner, offered a different emphasis. “[T]he the ruling undermines Connecticut?s comprehensive campaign finance reforms enacted in 2005 in response to a string of high-profile corruption scandals involving state elected officials, including former Connecticut Governor John Rowland,” she said in a statement.

“The Court?s decision thus underscores the need for comprehensive disclosure laws on the state and federal level to expose the pay-to-play systems which prevail in Congress and in so many legislatures across the nation.”

To learn about public financing of judicial campaigns, check out the JAS issues page on the topic.

Full post as published by The Gavel on July 14, 2010 (boomark / email).