Neb. AG: State's campaign laws likely unconstitutional

Jessica M. Karmasek Aug. 18, 2011, 7:25pm


LINCOLN, Neb. (Legal Newsline) - Nebraska Attorney General Jon Bruning says the state's campaign public funding laws most likely would be unconstitutional in light of a recent U.S. Supreme Court decision.

Bruning's six-page opinion, issued Wednesday, was requested by Frank J. Daley Jr., executive director of Nebraska Accountability and Disclosure.

Daley questioned the effect of the Supreme Court's ruling in Arizona Free Enterprise Club PAC v. Bennett on Nebraska's laws.

The Court, in its June 27 opinion, struck down Arizona's campaign financing program.

The majority wrote that the program's matching funds scheme "substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny."

"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," it 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."

Daley questioned whether the provisions of the state's Campaign Finance Limitation Act relating to the distribution of public funds are constitutional under the Arizona ruling.

Under the CFLA, candidates for a "covered elective office" must formally choose whether to abide by the voluntary spending limits.

An abiding candidate who raises and spends qualifying amounts in accordance with a statutory formula becomes eligible for public funds.

Public funds are then distributed under two sets of circumstances.

First, if the non-abiding candidate's estimate of expenditures exceeds the spending limit, public funds may be distributed to the qualified abiding candidate -- that is, when the non-abiding candidate spends 40 percent of the spending limit. The amount distributed would be the difference between the spending limit and the estimate of the non-abiding opponent.

Second, if a non-abiding opponent spends more than the voluntary spending limit, the abiding candidate receives in public funds the difference between the voluntary spending limit and the amount of opponent spending.

Nebraska's scheme, Bruning says, is somewhat different from Arizona's.

"Nebraska provides no initial outlay of public funds to all candidates who opt to participate. Also, the distribution of public funds to abiding Nebraska candidates is not triggered by the spending of independent expenditure groups, a provision of the Arizona public financing scheme, which particularly troubled the United States Supreme Court," the attorney general wrote.

However, the distribution of public funds to participating candidates under the Nebraska act is triggered by the expenditures of privately financed candidates, as was the award of additional public funds under Arizona's program.

"The Court found that such a provision 'plainly forces the privately financed candidate to shoulder a special and potentially significant burden when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy' and that 'a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries,'" Bruning wrote.

For those reasons, the attorney general says it is likely that the matching funds provisions of Nebraska's act would also be found to impose a "substantial burden" on the speech of privately financed candidates.

And for that reason, a court would likely deem Nebraska's public financing statutes unconstitutional, Bruning says.

Daley also questioned whether provisions of the CFLA relating to the aggregate contribution limits would be found unconstitutional.

According to the CFLA, "During the election period, no candidate for a covered elective office shall accept contributions from independent committees, businesses, including corporation, unions, industry, trade or professional associations, and political parties which, when aggregated, are in excess of 50 percent of the spending limitation for the office."

The Supreme Court, in its decision, did not specifically address aggregate contribution limits, Bruning points out.

However, if a court should find the public financing provisions of the CFLA violative of the First Amendment pursuant to the Arizona ruling, it would then need to determine whether those statutes providing for the distribution of public funds to candidates are severable, the attorney general explained.

In this case, because the statute pertaining to aggregate contribution limits is interwoven with the public financing provisions, a court could find that the invalid provisions are not severable and that it cannot be enforced independently, Bruning says.

From Legal Newsline: Reach Jessica Karmasek by email at

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