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McComish Case Arguments Previewed

With Supreme Court arguments scheduled Monday in an important campaign finance case, several major national newspapers have reported on the legal issues to be debated.

In McComish v. Bennett, the Supreme Court will hear a challenge to a provision in Arizona’s public financing law that critics contend violates free speech rights. Four states with public financing of judicial elections have a similar provision in their laws and could be affected by the ruling.  Justice at Stake has urged the high court to uphold the constitutionality of the challenged provision, and Gavel Grab has written extensively about the case.

A Washington Post article about the case was entitled, “With Ariz. case, Supreme Court takes up campaign finance issue again.” “Arizona election law heads to Supreme Court,” declared a Los Angeles Times headline. The Christian Science Monitor published an article headlined, “Supreme Court to decide Arizona’s unique campaign financing  law.”

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In U.S. Spotlight: McComish Impact for Courts

On the eve of oral arguments before the Supreme Court, a New York Times editorial says an Arizona public financing mechanism should stand, and the editorial points to the law’s impact on fair courts.

The Supreme Court will hear arguments Monday morning in McComish v. Bennett, which seeks to throw out the provision. The Times editorial was not alone in commentary spotlighting the case’s implications for state courts.

Justice at Stake has filed an amicus brief and has warned that the case could undermine the courts in four states, where similar laws protect judicial candidates from the impact of special-interest money; the brief was also signed by 13 former state Supreme Court justices and a former trial judge. One national media commentary linked to the JAS brief.

The Times editorial is entitled “Arizona’s Boon to Free Speech.” It says the public financing mechanism provides public funds to qualifying candidates in ways that “support, expand and promote political speech, carrying out a central purpose of the First Amendment.” The editorial adds about the provision:

“It has the support of respected former state judges who know that this and similar public financing mechanisms are the best way to eliminate corruption from state judicial elections. It deserves the Supreme Court’s strong endorsement.” Read more

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Scholar Handicaps Court on McComish

In a major campaign finance case to be argued before the Supreme Court Monday, election law scholar Rick Hasen expects an ultimate legal ruling favoring “free speech for the wealthy.”

Hasen has written a commentary in Slate entitled, “Rich Candidate Expected to Win Again/Does the Supreme Court care more about free speech for the wealthy than about political corruption?”

The case, McComish v. Bennett, challenges part of Arizona’s public financing law, which was enacted to combat corruption after a highly publicized scandal.

Wealthy, privately financed political candidates and outside groups attack the provision, which provides extra “trigger funds” to publicly funded candidates when their opponents exceed specified limits. They say the provision violates their First Amendment rights.

Hasen examines the arguments and the Supreme Court’s record and concludes:

“Five conservative justices on the Supreme Court appear to have no problem with the wealthy using their resources to win elections—even if doing so raises the danger of increased corruption of the political system.” Read more

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McComish Case Threatens Fair Courts

The Supreme Court will hear oral arguments Monday in a public finance election law case that poses a threat to fair courts. Justice at Stake is making resources available to spotlight the case, McComish v. Bennett, and to help journalists covering it.

“Public financing allows judges to talk to voters instead of donors, and protects the right of Americans to a fair day in court,” said Bert Brandenburg, JAS executive director, in a press release. JAS is a nonpartisan organization.

“It has broad, bipartisan support, both in the public and among judges who have been elected to the bench. McComish is important to the future of public financing, and to the future of courts that are seen as fair and impartial.”

Justice at Stake has set up an online resource page to help journalists covering McComish. That page includes a comprehensive roster of briefs, news stories on the case, and polling on court-related issues.

In addition, JAS leaders are available to discuss the case between now and the March 28 hearing at 10 a.m., and immediately afterward.

The McComish case does not refer specifically to judicial elections, but a ruling could affect all four states that have adopted public financing of appellate court elections. They are North Carolina, New Mexico, Wisconsin and West Virginia. Justice at Stake has filed an amicus brief in the case, which is available by clicking here.

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Groups Challenge N.C. Public Financing for Judicial Campaigns

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

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Commentary: High Court Ruling 'Actually Stifles Speech'

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

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CT Public Financing Law Left Intact

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

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Editorial: Finance Ruling a Setback for Democracy

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

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Analyst: Finance Ruling has 'Surprisingly Good News'

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

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Public Financing of Judicial Campaigns Highlighted

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.

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