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Legacy Content / RULES OF THE GAME

Public Financing: One Step Up Or Two Steps Back?

Supreme Court Ruling In Arizona Case Is A Blow To Public Funding Advocates, But It's Not Fatal

June 14, 2010

Reform advocates see both dark clouds and a silver lining in the Supreme Court's recent decision to block a key provision of Arizona's public financing law.

On the down side, the high court's one-page order may undermine public financing regimes in half a dozen states, and it sends yet another signal that existing election laws are under assault, some analysts say.

But the good news for clean-elections advocates is that the Supreme Court's stay in Arizona does not appear to affect either the presidential public financing system or pending congressional legislation to publicly pay for House and Senate campaigns.

 

If the court overturns Arizona's matching funds provision, it could affect similar systems in Connecticut, Maine, New Mexico, North Carolina and Wisconsin.

The court's June 8 order blocked Arizona candidates who opt into the state's public financing system from receiving additional matching funds when they are swamped by private spending. The state's law gives qualifying candidates a fixed amount of public financing but offers them additional "trigger" funds if opponents who don't take part in the public system spend a threshold amount against them.

A lower court had issued an injunction that barred the state from doling out the extra trigger funds, but an appeals court had stayed that ruling. The Supreme Court's June 8 order reinstates the trial court's initial injunction, effectively upending the state's campaign finance rules five months before Election Day.

That means that Arizona Gov. Jan Brewer (R), for example, won't receive up to $1.4 million in extra trigger funds that the state had just promised her. The order potentially affects not only Brewer, but some 150 candidates up and down the ballot in Arizona who have filed public financing requests.

"It throws [what is] a very chaotic situation in Arizona already into further chaos," said David Donnelly, national campaigns director for Public Campaign, a nonprofit that endorses public financing. "I just can't even imagine how to run a campaign when you don't even know how much money the system is going to provide."

The case, known as McComish v. Bennett, is expected to land before the high court on its merits. It's the most recent in a string of successful and pending election law challenges that threaten to dismantle key parts of the campaign finance regime.

In its controversial Citizens United v. Federal Election Commission ruling earlier this year, the Supreme Court overturned the longstanding ban on direct corporate and union campaign expenditures.

That ruling came on the heels of another case, Davis v. FEC, that also dealt with matching funds. In Davis, the high court threw out the so-called "Millionaires' Amendment" enacted with the 2002 Bipartisan Campaign Reform Act, which had raised contribution limits for candidates facing opponents who spent more than a threshold amount of their personal money.

If the court eventually overturns Arizona's matching funds provision as well, it could affect public financing systems in Connecticut, Maine, New Mexico, North Carolina and Wisconsin. Without matching funds, Loyola Law School professor Richard Hasen recently blogged, public financing may hold less appeal for candidates.

Interestingly, though, the presidential public financing system would be unaffected, legal experts say. Likewise the Fair Elections Now Act, which has 153 co-sponsors in the House and 20 in the Senate, and which proposes congressional public financing. That measure offers public matching funds to federal candidates who raise a threshold amount of low-dollar contributions.

That's because unlike the Arizona law, neither the existing nor the proposed public financing systems include funds triggered by an opponent's spending. Authored by Connecticut Democrat John Larson in the House and Illinois Democrat Richard Durbin in the Senate, the Fair Elections Now Act raises the public financing threshold for candidates only when they collect additional low-dollar donations.

"Thus, regardless of whether the Supreme Court upholds or strikes down Arizona's trigger funds provisions, Fair Elections remains on sound constitutional footing," states a recent analysis by the Brennan Center for Justice at New York University's School of Law.

On Capitol Hill, public financing has taken a back seat to the so-called Disclose Act, which Sen. Charles Schumer, D-N.Y., and Rep. Chris Van Hollen, D-Md., authored in response to the Citizens United ruling. Objections from nonprofit groups leery of new disclosure rules have helped stall action on that bill.

At the same time, reform advocates such as Common Cause have complained from the start that the Disclose Act does not go far enough and fails to address the root problem of runaway private fundraising. They've launched a grassroots campaign to promote the Fair Elections Now Act, which they argue enjoys substantial public and House support.

Their latest move is a series of demonstrations at congressional campaign fundraisers, starting with the annual "Mississippi Fish Fry" hosted on Capitol Hill last week by Rep. Gregg Harper, R-Miss. Common Cause and the Public Campaign Action Fund plan to crash more than 100 congressional fundraisers between now and the end of July.

"Public financing is really the only way to address all the issues that we're seeing in elections that are most on the minds of voters," said Donnelly, of Public Campaign. Depending on the Supreme Court, public financing could move one step forward or two steps back.

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