03/05/2013 02:59 pm ET Updated May 05, 2013

The Pushback in New York State

The pushback against billionaire funded politics has taken root in New York State. A substantial citizens' mobilization is underway to use public funds to finance electoral campaigns; Governor Andrew Cuomo has publicly called for public financing, and the Legislature is on the brink of adopting his proposal for "Fair Elections."

Under the umbrella of "Fair Elections NY," seventeen organizations have committed themselves to actively work in support of public funding, a coalition that includes the United Auto Workers, the Communications Workers of America and two SEIU locals, as well as long-time reform organizations such as Public Campaign, Citizen Action and Democracy Matters. Many more have signed on. At last count there were 121 organizations listed as "campaign supporters." (For the entire list go to Discussions are still going on concerning specifics of the new system. This involves a three-way set of talks between the Governor's office, the leaders of the State Assembly and Senate, and the reform organizations and unions. It is all but certain that what will emerge will be a bill modeled on New York City's system in which six dollars of public funds are provided for each one dollar received in private donations.

The adopting of Fair Elections in New York State will not only produce a counter-weight to the flood of "independent" expenditures unleashed by recent Supreme Court decisions. Just last week the Supreme Court accepted a case called McCutcheon v. FEC that challenges the present aggregate limits to federal campaign contributions. That acceptance makes it likely that yet another limitation on the use of wealth in politics will be struck down.

Public campaign financing however, provides a mechanism that is immune to the continuing claim by campaign finance reform's opponents that they occupy the moral high ground of protecting free speech. Using free speech as a way to attack reform cannot work with public funding. With it, nobody's free speech is put in jeopardy. It is true that by opting into the public funding system, a candidate will have to accept limits on contributions (what these limits will be in the New York system is not yet clear). But doing so will be entirely voluntary. The choice to run as a privately financed office-seeker will still remain an available option. What public funding does is open up the system to candidates who do not have their own private wealth nor access to that of others. And because it is not coercive, it is shielded from attack on First Amendment grounds.

Nothing, of course, is certain in politics. If the Governor were to retreat, the likelihood of reform would be much reduced. The New York State legislature is quirky, and despite current appearances might cave. But the odds are that neither of those will occur. What is more likely is that efforts will be made to water down the legislation. This could, for example, take the form of allowing candidates to take substantial amounts of private funds, over and above the public money they receive. These are, after all, self-interested legislators who are being asked to reform a privately funded system in which they have been successful. They can be expected to attempt to shape the legislation to preserve as much of that system as they can while still claiming to be reformers.

If this occurs, the reform coalition will be tested. Some will be tempted to withdraw. But doing so will be politically very costly. The state's politicians have made it clear that they require a groundswell of public support to counter reform's wealthy opponents. And that is precisely that grassroots movement that reformers are building. But if there are a substantial number of coalition defectors, the reform effort will crash and burn.

Thus there is a need to establish a criterion of acceptability for the as yet unseen legislation. But there is nothing new in that need. Whatever the content of the Fair Elections bill that ultimately is crafted, reformers will have to decide whether to support it or not. The New York system will not be a full public funding system. Private money will be present in whatever version of "fair elections" sees the light of day. Each of the members of the reform coalition will have to decide whether the level of private funding is so large as to make the system unacceptable.

The test of acceptability, I think, should be whether a publicly funded candidate who does not have access to wealthy private donors can run a potentially victorious race against two classes of candidates. The first is someone who is fully privately funded. The second is an opponent who is publicly funded but who has also been able to raise large amounts of private money allowed under the new system. If a realistic answer is yes - that someone dependent on the six to one match can win - then the new system should be supported. It would allow for something that simply does not exist at present: office holders who do not have to divide their loyalty between big contributors and the voters of New York.