On June 27, 2011 the Supreme Court issued rulings in McComish v. Bennett and Arizona Free Enterprise v. Bennett. A narrow 5-4 majority held that the Arizona system of public finance contravenes the First Amendment. The Arizona law allows candidates that meet certain objective thresholds of viability – as by gathering small contributions – to receive public financing to run a campaign. In addition, however, the Arizona law awarded additional funds to candidates who faced particularly well-financed opponents. Publicly funded candidates received additional expenditures when the campaign expenditures of their privately funded opponents exceeded a certain level, and those additional expenditures increased with the expenditures of their opponents. Additional public funds were also distributed when independent groups spent money on behalf of privately funded candidates.
Privately financed candidates and their allies sued to have the Arizona system ruled unconstitutional, arguing that it imposed a disincentive to buy campaign advertising if the result would be to help fund their publicly financed opponents. The Supreme Court agreed with this view of the First Amendment, and struck the system down. The state of Arizona had argued, plausibly in our view, that its system of public financing was designed to promote more speech, not less, and that helping publicly financed candidates get their message out should not be viewed as suppressing the speech of privately financed candidates.
The decision represents a significant loss in the fight for publicly financed elections. Many of the most successful systems of public financing, those of Arizona, Maine, Connecticut, and North Carolina (in its judicial races), provided additional funds for publicly financed opponents who are outspent by privately financed opponents. By contrast, the Presidential system of public financing, which contains no trigger provision designed to equalize public and private financing, is gradually falling into disuse. Obama, Bush, and Kerry have all chosen not to use public funds.
It is important to remember, however, that McComish does not rule public financing itself unconstitutional. No current Justice on the Supreme Court appears to believe that it violates the First Amendment simply to fund candidates who agree not to raise private money. The fight against pay-to-play politics must necessarily become more creative in its efforts to design fair, clean systems of electoral financing. These might include increasing the levels of public financing, tying public financing to estimates of private financing rather than actual funds raised by privately financed opponents, or experimenting in allowing publicly financed candidates to raise supplemental funds of their own.
By Joel Page. Joel is an attorney in Dallas interested in helping to bring transparency, fairness, and accountability to campaign finance.