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Public Finance Ruling: Advocacy Groups React

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

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Public Finance Ruling: In the Court's Words

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

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JAS: Public Financing 'More Critical Than Ever'

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

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Supreme Court Voids AZ Public Financing Provision

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.

Justice at Stake had warned in an amicus brief that an adverse ruling could gravely threaten fair courts, due to the “deluge of special interest money [that] is eroding public trust in America’s courts” and the strong promise for public financing  as a viable reform. Four states have adopted public financing for judicial elections with laws that use a provision like Arizona’s.

The ruling came in Arizona Free Enterprise Club v. Bennett, which was consolidated with another case, McComish v. Bennett.

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Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Senate Republican Leader Mitch McConnell wrote a Washington Post op-ed responding to remarks by Attorney General Eric Holder and entitled, “Guantanamo is the place to try terrorists.” A blog post about the two leaders “battling over terror trials” was published by Main Justice.
  • Former U.S. Attorney John McKay, a JAS board member, is part of a coalition kicking off an initiative to legalize marijuana in Washington state, a Seattle Times article reported.
  • In advance of a Supreme Court ruling in a public financing case, McComish v. Bennett, a article is headlined, “Campaign Financing Ruling May Make NYC a Model for the Nation.”
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Crossfire in AZ Over Public Financing Law

First, Arizona legislators agreed to ask voters whether to get rid of public financing of elections for statewide and legislative posts.

Next, backers of public financing filed a lawsuit to block that 2012 vote on a constitutional amendment, according to an East Valley Tribune article.

The proposed constitutional amendment does not specifically repeal existing Arizona law but effectively voids it by barring the expenditure of public funds for political campaigns.

Republican state Sen. Steve Pierce said that Arizona’s budget deficit  makes it “totally inappropriate for anyone to run on state funds when that money could be used someplace else,” an Arizona Daily Star article reported. Critics also say participants have abused the system, an Associated Press article said.

Backers of Arizona’s existing system, on the other hand, contend more people can run for elective office by using it, and it reduces the clout of deep-pocketed interests.

The U.S. Supreme Court recently heard oral arguments in a case, McComish v. Bennett, challenging a key provision of the Arizona public funding statute. You can learn about it from Gavel Grab or from a Justice at Stake issues page on the case.

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Friday Gavel Grab Posts

In these other dispatches about fair and impartial courts:

  • Ronald Dworkin, a constitutional law scholar teaching at New York University, has written a commentary about the McComish v. Bennett public financing case before the Supreme Court. Entitled “More Bad Arguments: The Roberts Court & Money in Politics,” it is in the New York Review of Books. Click here to read about McComish in Gavel Grab.
  • The U.S. Government Printing Office and the Federal Judiciary are launching a one-year pilot program to permit free public access to court opinions through GPO’s Federal Digital System. To learn more, view the announcement at GroundReport, a global news platform.
  • Senior Judge Thomas G. Nelson of the Ninth U.S. Circuit Court of Appeals has died at age 74, according to a press release from that court.
  • If you want to listen to oral arguments Tuesday on the constitutionality of the federal health care overhaul law, in proceedings before the Fourth U.S. Circuit Court of Appeals, an audio link will be available Tuesday at 2 p.m., the court said in a release.
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AZ Voters to Decide on Revising Merit Selection

As a result of legislative action, Arizona voters will get to decide next year whether to change  the merit selection process in place for choosing judges for Supreme Court, Court of Appeals and the trial courts in the two largest counties.

Arizona’s Senate this week  placed a referendum on judicial selection on next year’s ballot, according to an Associated Press article. The referendum will ask whether voters want to make changes that would reduce the State Bar of Arizona’s role in judicial selection and also the influence of judicial screening commissions. The House already had approved a similar measure.

If backers of the referendum prevail, a measure of influence would be shifted from the State Bar and commissions to the governor, who would get more options when it comes to picking judges for vacancies, a Capitol Media Services article reported.

Under current practice, screening commissions include five attorney members who are nominated by the State Bar, and 10 members who are not attorneys. If the referendum is approved, then the State Bar no longer would select the five attorney members; its president would pick one, and the governor would choose the other four.

Currently the screening panels must nominate at least three candidates to the governor for a vacant judgeship, and the governor must pick a judge from that list. If approved, the referendum would change this so the panels would be required to send the governor the names of all candidates who received backing of at least half of the commissioners, and the panels would have to send names of at least eight applicants for a vacancy. Read more

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A New Strategy for Judicial Election Reform

Two legal scholars, saying that “judicial elections are here to stay,” are laying out a case for incremental rather than sweeping reform.

Incremental change offers a more realistic option for reform in an era when state courts have been inundated with campaign cash and voters nonetheless have consistently rejected proposals to eliminate judicial elections and switch to appointive systems, the authors suggest. Specifically, they urged a new legal strategy to impose limits on spending in judicial elections.

Erwin Chemerinsky (photo), dean of the law school at the University of California, Irvine, and James J. Sample, an associate professor of law at Hofstra University, give their analysis in a New York Times op-ed that is headlined, “You Get the Judges You Pay For.” Chemerinsky, a preeminent expert in constitutional law, is author of seven books, including “The Conservative Assault on the Constitution.”

Before suggesting reforms, the scholars point to both history and the jurisprudence. They also highlight polls showing that more than seven of 10 voters “believe campaign cash influences judicial decisions,” and that almost half of state court judges agree.

They  emphasize skyrocketing campaign funding in state high court elections and the “extraordinary comparative power” of deep-pocketed “super spender” interest groups, documented by a report last year called “The New Politics of Judicial Elections 2000-2009: Decade of Change.” Its co-authors included Sample and the Justice at Stake Campaign. Read more

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NY Times: 'Enormous' Damage if Money is Unfettered

If the U.S. Supreme Court continues its tack toward allowing unrestricted money in politics, “the damage and corruption will be enormous,” a New York Times editorial warns.

The editorial focuses on a challenge to a key provision of Arizona’s law for public financing of political campaigns. At recent oral arguments, the court’s conservative majority was widely viewed as preparing to strike down the provision (see Gavel Grab). It allows publicly funded candidates to get additional dollars, called matching or “trigger funds,” when privately financed candidates or independent groups spend more.

The Times editorial traces back to the court’s landmark Buckley v. Valeo ruling in 1976 that upheld the public financing system for presidential elections. According to the editorial, the court did not rule that political money literally equals speech but that it enabled speech.

“Now the court’s conservative majority is again reshaping politics, ruling that what matters most for money and speech is their ‘fair market’ impact,'” the editorial warns, citing as evidence a 2008 ruling.

The Arizona “trigger funds” mechanism is “one of the most compelling innovations in the country,” the editorial states. Using it, “The state will match for a state-financed candidate what an opponent raises in private contributions up to triple the initial amount of state financing.” Read more

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