Wednesday, December 1, 2010

Is the Arizona Campaign Finance Case the Death of Public Financing?

So says my friend Rick Hasen.  But I'm not so sure.  The Supreme  Court recently agreed to hear a case from Arizona that challenges that state's public financing scheme, McComish v. Bennett.  Oversimplifying slightly, Arizona's public finance scheme attempts to provide enough public money  to candidates who agree to forgo private money so that they can compete against privately financed candidates and independent groups.

Arizona provides an initial lump sum payment to candidates (we'll call them the public candidates) who choose to forgo financing their campaigns with private sums.  If the candidates' opponents  (we'll call them the private candidates) spend more than the public candidates received in the initial lump sum payment, the public candidates are entitled to more public money to match the excess amount spent by the private candidates.  Arizona also takes into account the amount of money spent by independent groups against the public candidate.  The public candidate is entitled to more public money to match the combined spending of independent groups and the private candidate if the combined spending of the private candidate and the independent group exceeds the initial lump sum provided to the public candidate.  Lastly, there is a cap to the amount of public money that the public candidate can receive; the public candidate cannot receive more than three times the amount of the initial lump sum.  Thus, the private candidate, if they're a good fundraiser, always has the potential of out-funding the public candidate.

So who is complaining about this scheme?  Private candidates who maintain that they've refrained from spending money or raising money in their campaigns because they did not want to trigger the matching funds that their public candidate opponents would receive.  They argued that the availability of matching funds to their opponents puts them at a competitive disadvantage.  Some of them argued that the availability of matching funds forced them to self-censor because they did not want to trigger matching funds.

Rick is a more perceptive watcher of the Court than I am.  I don't know why the Court takes certain cases and except in the most obvious cases I'm often less sure how they'll decide the ones that they take.  And Rick's assertion that there is no other reason for the Court to take the case other than to reverse the Ninth Circuit is facially plausible. For the reasons I lay out below however, I'm less sure of Rick's claim that this case will be the death knell for public financing.  This is not an easy case for the Court to overturn.  If he's right, campaign finance reform advocates are truly doomed. But here are some hurdles that the Court would have to overcome.

First, it is not clear that the plaintiffs' First Amendment rights are burdened in any way.  The plaintiffs' central argument is that they will refrain from campaign spending  so as not to trigger matching funds.  This is not a case of the government limiting the plaintiffs' spending or punishing them for spending.  Consider this scenario, suppose the State of Arizona had said to public candidates, if you opt into our public finance system, we will give you public funds to match your opponent's spending dollar for dollar.  Would such a scheme be a burden on the free speech rights of the private candidates,the ones who opt-out of public financing?  Is this any different from the state providing funds to a public school to compete with a private school?  To have the devastating impact that Rick is predicting, the Court would have to find that the availability of public funds is itself a burden on the speech rights of a privately-funded candidate.  Indeed, to the extent that there is a good argument here, the better argument is that the availability of public funds itself, as opposed to matching, is the burden.  While the public candidate can focus on campaigning the private candidate has to raise money.  If the Court did that, Rick would surely be right.  But such a move would be truly unprecedented.

Second, even if the Court concludes that the public financing scheme burdens the plaintiffs' speech rights, the Court would have to find that the burden is substantial.  Some of the plaintiffs' in this case are individuals who were successful officeholders even after triggering matching funds for their opponents.  Assuming that that they did self-censor and this self-censoring constitutes a cognizable burden, the significance of this burden is not very clear.  To be actionable the burden must be substantial. Even if one is charitable to the plaintiffs' claim, I cannot see how the burden is substantial.  Moreover, it is quite clear that by publicly financing candidates the state satisfies directly its concern to limit corruption in campaign financing.

Third, if the Court is inclined to overturn the Court of Appeals, the most vulnerable part of Arizona's scheme is the part that grants the public candidate matching funds to counteract independent expenditures against the public candidate.  I can't fathom a constitutionally cognizable justification, state interest, for granting matching funds to counteract independent expenditures.  There, I think the private candidate has an equality claim.  Moreover, that equality claim may be exacerbated if the state does not take into account independent expenditures in favor of the public candidate.  As I understand Arizona's scheme, it is not clear that the State takes into account independent expenditures in support of the public candidate to offset the grant.  If you're a private candidate you do have a basis to complain where the state is providing funds to your opponent for independent expenditures that are, by definition, outside of your control when the state does not provide you funds to counteract independent expenditures deployed against you.  This comes closer to the scheme the Court struck down in Davis v. FEC.

But if the Court went down this route, it would largely leave the public financing scheme intact.  The opinion would be narrow and would only communicate that the Court is serious that campaign finance regulations must hew closely to judicially-recognized legitimate state interests.  I can easily see the Roberts Court taking this approach.

If the Court overcomes these hurdles and goes down the road that Rick predicts, McComish will not only signal the death-knell of public finance, it will signal the death-knell of all campaign finance reform.

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