Gavel Grab

Two political action committees that support anti-abortion candidates have filed a federal lawsuit challenging the constitutionality of part of North Carolina’s law that provides public financing for judicial campaigns.

Indiana-based lawyer James Bopp Jr. is representing the PACs, who brought the lawsuit in the wake of Supreme Court decision, Arizona Free Enterprise Club v. Bennett. That ruling struck down an important public financing mechanism in Arizona law (see Gavel Grab). North Carolina, the first state to provide full public financing for judicial campaigns, makes use of the mechanism, called triggered matching funds.

An Associated Press article about the North Carolina lawsuit quoted Damon Circosta, executive director of the N.C. Center for Voter Education as pointing out significant differences between public financing in the Tarheel State and in Arizona. Read more

The Supreme Court’s invalidating a key public financing provision in Arizona law represented a free speech loss, although the majority opinion framed the ruling otherwise.

Mimi Marziani of the Brennan Center for Justice offered that analysis in a National Law Journal commentary entitled “A loss for ‘We the people’: The high court’s ruling in the Arizona public financing case is no win for free speech; it actually stifles speech by creating a new right to speak without response.”

She was writing about Arizona Free Enterprise Club v. Bennett. The high court struck down a provision in Arizona’s law that furnished extra taxpayer dollars to participating candidates when privately funded foes or independent groups spent more. It was called a “trigger funds” provision. Marziani concluded:

“The majority opinion largely ignores that Arizona’s program was enacted to curb political corruption by ensuring that candidates owe their campaign success to taxpayers, not fat-cat donors. [Chief Justice John] Roberts also overlooks that public financing gives regular folks — those of us without corporate connections or trust funds — the ability to compete for political office, thereby broadening the choices available to voters. Arizona’s interest in bettering its democracy was utterly disregarded.

“Instead, just as it did in last year’s Citizens United decision, the Roberts Court used the First Amendment to shield the most powerful voices — and silence everyone else. As [Justice Elena] Kagan admonished, ‘Truly, democracy is not a game.’ She’s right. But, unfortunately, this time, ‘We the People’ lost.” Read more

It was the Supreme Court’s decision voiding an Arizona public campaign financing provision that drew widespread attention this week. Less noticed was a Supreme Court action that left intact a challenged aspect of Connecticut’s public financing law.

The high court on Tuesday dismissed an appeal that challenged Connecticut requirements for third party candidates to qualify for public campaign funds, the Associated Press reported.

One day after declaring unconstitutional the Arizona provision, the court on Tuesday “signaled something just as significant: Not all forms of public financing will raise the ire of the justices,” a Washington Post article said.

“It gives some reason to hope that the Supreme Court is not on the war path to eliminate all forms of public financing,” said Tara Malloy, a lawyer with the Campaign Legal Center, a JAS partner on campaign reform issues.

Meanwhile, a federal judge in Florida struck down a provision in that state’s campaign law that mirrored the Arizona provision found unconstitutional by the Supreme Court, according to an Orlando Sentinel article. The Arizona provision for “trigger funds” allowed publicly funded candidates to get additional money when privately financed candidates or independent groups spent more. Read more

In two national newspaper editorials, a Supreme Court opinion that struck down part of an Arizona public financing law was alternatively condemned and saluted for its “silver lining.”

“The Supreme Court decision striking down public matching funds in Arizona’s campaign finance system is a serious setback for American democracy,” protested a  New York Times editorial entitled “The First Amendment, Upside Down.” The editorial said, “It takes away a vital, innovative way of ensuring that candidates who do not have unlimited bank accounts can get enough public dollars to compete effectively.”

A USA Today editorial, entitled “Public Finance Ruling Leaves a Silver Lining,” offered a different emphasis. It said “the big news from Monday’s ruling wasn’t that the Arizona law was struck down, but that the majority said it had no interest in killing public financing altogether. For anyone fed up with government going to the highest bidder, that’s reassuring.”

Some commentary took an entirely different view and applauded the ruling in Arizona Free Enterprise Club v. Bennett. The court voided a provision for matching or “trigger” funds, the extra dollars made available to publicly funded candidates when a privately funded opponent or group spent beyond a specific threshold. Read more

A prominent election law analyst calls the Supreme Court’s Arizona Free Enterprise Club v. Bennett ruling a clear defeat for campaign finance proponents, yet he finds “surprisingly good news” in it.

Richard L. Hasen, a law professor who runs Election Law Blog, identifies the following “unexpected” good news in a commentary about the Arizona case that he wrote today for the New Republic:

• “First, the Roberts Court seems to have retreated from the suggestion that all campaign finance laws, aside from disclosure, are in constitutional trouble.” The high court confirmed that its landmark Citizens United decision last year did not invalidate federal law regarding campaign contribution limits, he says.
• Justice Elena Kagan “has emerged as a forceful intellectual voice for the constitutionality of reasonable campaign finance regulation.” She is “a pugnacious, take-no-prisoners’ writer on an issue about which she feels passionately.” Justice Kagan wrote the dissent in Arizona Free Enterprise Club v. Bennett, which was consolidated with another case, McComish v. Bennett.
• The court “did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is ‘not our business.’”

Hasen concluded, “[W]e may not be seeing the full end of campaign finance law, at least not yet, and Justice Kagan has shown that the other side won’t go down without a fight.”

From a different vantage point, however, former Federal Election Commissioner Hans von Spakovsky says in a Heritage Foundation blog that the ruling “is in the best tradition of American liberty and freedom.” Read more

The National Center for State Courts issued today a special edition of its Gavel to Gavel publication, a report on state legislation affecting the courts; the special edition is about public financing of judicial campaigns.

The National Center for State Courts is a JAS partner. The Supreme Court’s decision in Arizona Free Enterprise Club v. Bennett prompted publication of the special edition. Arizona Free Enterprise Club v. Bennett was consolidated with another case, McComish v. Bennett.

Advocates of strong campaign finance reform predicted that in the wake of the Supreme Court’s ruling in Arizona Free Enterprise Club v. Bennett, public financing systems that meet constitutional standards still can thrive.

“The reform movement to create new public financing systems nationally and at the state and local level will go forward without interruption,” said Fred Wertheimer, president of Democracy 21.”

“Public financing remains Constitutionally strong,” said Michael Waldman, executive director of the Brennan Center for Justice, which helped defend the Arizona law before the high court.

Waldman  said ”such systems can exist and thrive without the kinds of triggers in the Arizona law.” The high court on Monday declared unconstitutional in Arizona Free Enterprise Club what is called the “trigger funds” mechanism in Arizona’s law (see Gavel Grab).

Tara Malloy, Campaign Legal Center associate counsel, said that “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.” Read more

When the Supreme Court ruled Monday that a provision in Arizona’s public financing law violated the First Amendment, it split 5-4 along ideological lines.

The views of the sharply divided court are reflected in the majority opinion, by Chief Justice John Roberts Jr., and the dissent, authored by Justice Elena Kagan. The court struck down a provision permitting publicly funded candidates to get additional dollars, called matching or “trigger” funds, when privately financed candidates or independent groups spend more (see Gavel Grab). The case is called Arizona Free Enterprise Club v. Bennett.

“Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand,” Chief Justice Roberts wrote, according to a New York Times article. The majority said rights of privately financed candidates were violated by the provision, because these candidates may shy from spending campaign cash if they’re aware it could result in the government paying for speech by a publicly funded foe.

“ ‘Leveling the playing field,’ ” he wrote, “can sound like a good thing. But in a democracy, campaigning for office is not a game.”

At another point, he added, “We do not today call into question the wisdom of public financing as a means of funding political candidacy.”

In her dissent, Justice Kagan disagreed with the majority’s premise, saying that First Amendment values were advanced by the Arizona statute.

“The system discriminated against no ideas and prevented no speech,” she wrote. She characterized the impact of the public financing law as “less corruption” and “more speech.” Read more

Justice at Stake’s executive director, Bert Brandenburg, called the Supreme Court’s ruling in Arizona Free Enterprise Club v. Bennett on Monday “disappointing, but not fatal for America’s courts.”

The Supreme Court struck down a key provision in Arizona’s public financing law on a 5-4 vote (see Gavel Grab). Brandenburg said in a JAS press release:

“Today’s ruling is disappointing, but not fatal for America’s courts. State judicial elections are drowning in special-interest spending. Properly crafted public financing laws are more critical than ever, so that judges do not have to dial for dollars from major donors who may appear before them in court.”

Brandenburg emphasized that while the high court voided an important funding mechanism in Arizona’s law, called “triggered matching funds” for participating candidates, it affirmed earlier rulings upholding the constitutionality of public financing itself.

In 39 states, judges face some type of election, and public financing has proven to be a powerful reform. Campaign spending in judicial elections exploded during the last decade, Justice at Stake said. Read more

In a 5-4 ruling, the Supreme Court on Monday declared unconstitutional a key provision of Arizona’s law for the public financing of campaigns.

Under the provision, publicly funded candidates get additional dollars, called matching or “trigger” funds, when privately financed candidates or independent groups spend more.

The provision violates the First Amendment, the Supreme Court said, according to an Associated Press article. The conservative majority said Arizona was attempting to impermissibly “level the playing field,” CNN reported.

It was the latest in a series of rulings by the high court’s conservative majority that have cut back on the government’s ability to regulate campaign financing.

Chief Justice John G. Roberts Jr., in the majority opinion, said the Arizona law places a substantial burden on protected political speech. In dissent was Justice Elena Kagan, and she was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen G. Breyer, according to an ABA Journal article.