Litigation

Iowa Brief to Court: Don?t Toss Public Financing

By Peter Hardin

Top legal officials in Iowa, where voters dumped three state Supreme Court justices last year over a ruling that permitted same-sex marriage, are examining ways for states to restore public trust in the courts.

They’ve taken their concern to the U.S. Supreme Court, which will hear oral arguments Monday in a case challenging part of a public financing law from Arizona.

Iowa’s attorney general, Thomas J. Miller, and solicitor general, Mark E. Schantz, asked the court in an amicus brief to affirm the constitutionality of the provision — and they suggest they have an eye on public financing:

“We wish to share our view that public financing of state elections should remain available as a tool to restore public confidence.”

“In states with elected judges, campaigns heavily financed by the plaintiffs? bar on the one hand, and the defense bar, insurance companies and other large organizations with important business before the courts on the other, have surely eroded public confidence in the fundamental concept of equal justice before the law.”

“Whether Iowa will follow the lead of other states that provide public financing in judicial elections is unclear, but some form of it might well be considered an appropriate means of restoring confidence.”

Joining Iowa in its amicus brief were Connecticut, Maryland, New Mexico and Vermont. Justice at Stake has made similar arguments in its amicus brief to the court, joined by 13 former state Supreme Court justices and a former trial court judge. ?Public financing eliminates the need for judges to ?dial for dollars? from major contributors, many of whom appear before them in court.  It is therefore one of the most powerful reforms in shielding courts from special-interest influence,?  the JAS brief says.

“McComish is important to the future of public financing, and to the future of courts that are seen as fair and impartial,” said Bert Brandenburg, JAS executive director, in a press release.

Justice at Stake has pointed out that special interest spending has soared in state high-court elections, as competing groups attempt to tilt the scales of justice in their favor. Candidates raised $206.9 million in 2000-09, more than double the $83.3 million raised in the previous decade.

More than two dozen amicus briefs were filed in the case. It focuses on a challenge to ?trigger funds,? which grant additional public money to publicly financed candidates when opposition spending exceeds specified amounts. Four states publicly finance court elections and have such a provision. Their laws could be affected by the high court?s ruling.

Privately financed candidates and outside groups challenged the Arizona provision, maintaining that “trigger funds” violate their First Amendment rights by deterring their spending — therefore chilling their speech.

Among amicus briefs in agreement, some argue there have been no real benefits from such “clean elections” laws, or say the laws impermissibly try to “level the electoral playing field.” Those submitting briefs criticizing the provision included the Center for Competitive Politics; Senate Republican Leader Mitch McConnell; and former Federal Election Commission officials, represented by Indiana-based lawyer James Bopp Jr.

Advocates supporting the “trigger funds” provision say it has proven successful in encouraging participation of candidates in public financing and that it has not had an effect on campaign spending by privately financed candidates and third parties.

Among those submitting briefs backing the law were bipartisan political leaders, business executives, constitutional law professors and political scientists. Joining in one brief were Charles Fried, a former solicitor general under President Reagan, former New Jersey Governor Christine Todd Whitman, and former Sens. Warren Rudman and Alan Simpson.

Others filing supportive briefs included acting U.S. Solicitor General Neal Katyal; the Committee for Economic Development, a JAS partner; and public interest groups including the Campaign Legal Center, Democracy 21, and the League of Women Voters of the United States. The LWV is a JAS partner, and Campaign Legal Center is a JAS partner on state reform issues.

Meanwhile election law expert Rick Hasen suggested a disconnect existed between a high court majority following a “more speech is better” theory in Citizens United last year, and seeming poised to strike down Arizona’s provision;  when well-heeled, privately funded candidates spend heavily under such a law, Hasen said, their publicly financed opponents get extra money and voters end up hearing more — not less — speech. You can read more of Hasen’s views in Gavel Grab.

To learn more about the case, check out the JAS resources page about it.

Full post as published by The Gavel on March 25, 2011 (boomark / email).