U.S. SC rules against public financing program

Jessica M. Karmasek Jun. 27, 2011, 2:56pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court, in a 5-4 decision Monday, struck down Arizona's campaign financing program.

Proponents of the state program say the Court's ruling jeopardizes the public financing programs of several states and municipalities that contain provisions much like those voided.

The "triggered matching funds provisions" of the Citizens Clean Elections Act provided participating candidates with supplemental public funds grants in case they faced large expenditures by a privately financed opponent or an outside group.

Supporters said the provisions encouraged participation and ensured that publicly financed candidates could remain competitive in elections that are increasingly dominated by outside corporate money.

But opponents said the law violated the First Amendment rights of those privately financed candidates and their contributors.

A district court had entered a permanent injunction against the enforcement of the matching funds provisions.

The U.S. Court of Appeals for the Ninth Circuit reversed, concluding that the provisions imposed only a minimal burden and that the burden was justified by Arizona's interest in reducing political corruption.

The Court, in its 30-page opinion, reversed the appeals court's ruling. It wrote that the matching funds scheme "substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny."

Chief Justice John Roberts authored the Court's majority opinion. Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas joined.

"Arizona's program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State," the majority wrote. "This goes too far; Arizona's matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling State interest."

Justice Elena Kagan dissented. Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joined.

The First Amendment's "core purpose," Kagan said, is to foster a political system full of "robust discussion and debate."

"Nothing in Arizona's anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection," she wrote.

The minority argues that the act promotes the values underlying both the First Amendment and the U.S. Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."

The Campaign Legal Center, a nonpartisan, nonprofit organization that works in the areas of campaign finance and elections, political communication and government ethics, said in a statement Monday that the Court's decision undermines "the integrity of our elections."

The legal center had filed an amicus brief with the Court on behalf of eight public interest groups in support of the challenged provisions.

"The Court's hostility towards legislative efforts to protect our elections from the corrupting effects of big money politics is deeply disturbing and deeply anti-democratic," Legal Center Associate Counsel Tara Malloy said in a statement.

Malloy noted that the Court's decision does not affect many public financing programs without the matching funds provisions. These include the presidential public financing system, state programs using different payment models such as the programs of Minnesota and Massachusetts, and the congressional system proposed by the Fair Elections Now Act.

"The silver lining to the Supreme Court's decision is that it invalidates only one model of public financing and leaves open other avenues for reform. Citizens and legislators will simply have to work harder in the design of public financing programs to ensure that they clear the new constitutional hurdles created by the Roberts Court," Malloy said.

Connecticut Attorney General George Jepsen issued his own statement in response to the Court's ruling Monday:

"I strongly disagree with the United States Supreme Court, which has once again seen fit to interfere with democratically enacted reforms to our system of financing electoral campaigns," he said.

"Voters are determined to find ways to fix a system that favors highly financed candidates, but the Court is just as determined to be an obstacle to the public will."

Jepsen said he is concerned the Court's decision will lead to even higher campaign spending to which publicly financed candidates will be unable to respond.

"Ultimately, the decision will negatively impact the efficacy of publicly financed electoral campaigns," he said.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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