In a narrow 5-to-4 ruling authored by Chief Justice John Roberts, the U.S. Supreme Court told lawmakers on all levels of government that they do not have the power to design public campaign financing programs that best meet the needs of candidates in their jurisdictions. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (aka McComish v. Bennett), the Court invalidated the constitutionality of so-called "rescue" or "trigger" funds provisions. As I have previously blogged (Will the Supreme Court Vote for Speech? and The Supreme Court Could Axe Efforts to Reduce Big Money), rescue funds provisions provide publicly financed candidates with additional money when and if they are faced with privately financed opponents or independent expenditure groups that spend over a threshold amount of money.
Rescue funds provisions essentially serve two goals. First, they are aimed at allowing publicly financed candidates to remain competitive when they are faced with relatively high spending privately financed opponents, or independent expenditure groups that spends money against publicly financed candidates or in favor of their privately financed opponents. Second, the availability of rescue funds also makes it more likely that candidates will opt into public campaign financing programs, which have been held to serve important governmental interests like freeing candidates from the burden of private fundraising and allowing candidates to spend more time with all of their constituents, not just those who can or want to be campaign contributors, and reducing corruption or its appearance.
The Court found that rescue funds provisions violate the First Amendment. Chief Justice Roberts, writing for the majority, essentially held that privately financed candidates and independent expenditure groups will not want to continue spending money over the threshold amounts, which trigger the granting of rescue funds to publicly financed candidates. Therefore, under the Court's logic, the rescue funds provision act to impermissibly limit the spending of privately financed candidates and independent expenditure groups. That is problematic under the First Amendment because the Court long ago ruled that money is speech in this area.
This is a sadly ironic ruling. Far from chilling an open and robust debate, the ability of publicly financed candidates to obtain additional public funds to respond to privately financed opponents and independent expenditure groups actually promotes speech.
Before today, lawmakers (and the citizens via the initiative process) were free to use a number of tools to develop the public campaign financing program that best fit the needs of political candidates in that area. The Supreme Court has now taken the power to determine whether, when and how to give candidates in competitive and/or expensive races more funds power, and away from jurisdictions. The Court has also ignored the reality that rescue funds actually facilitate, rather than chill, political debate.
* Jessica Levinson authored an amicus brief in favor of respondents in this case, and consults for Common Cause on issues related to this case.
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