Yesterday, the U.S. Supreme Court continued its recent streak of dismantling modern campaign finance laws:
The Supreme Court on Monday struck down a key provision of an Arizona law governing the public financing of political campaigns. The Arizona law required public matching funds for participating candidates when their opponents who had opted out of the public system or independent groups increased their private spending. The court vote was 5 to 4, with the majority opinion — written by Chief Justice John Roberts — deciding that the law violated the First Amendment rights of candidates who raise private money.
While it’s clear that the decision “struck down public disbursements that are triggered by another candidate’s spending, or by another interest group’s spending,” it’s more ambiguous about the future of public financing programs generally.
The Court states that “we do not today call into question the wisdom of public financing as a means of funding political candidacy. That is not our business.” From these words, commentators on both ends of the ideological spectrum have come to various conclusions about the constitutionality of automatic matching funds programs, like New York City’s election law. In NYC’s system, candidates who opt in to public financing and follow a spending limit receive a 6-to-1 match on contributions from city residents, for contributions up to $175. Below are a few reactions to the constitutional question regarding NYC’s model:
Richard L. Hasen:
Would the New York model survive a First Amendment attack before the Roberts Supreme Court? It is hard to say. On the one hand, because the multiple match does not give additional money based upon opponent spending, it is not directly contrary to today’s holding. And the court has said that public financing is “not our business.” But such plans may be doomed if the court views them as “leveling the playing field,” an equality rationale for campaign finance laws that the court majority has now rejected in three straight cases.
If the court is right that providing a supplemental matching grant to a candidate to enable her to compete against a private candidate is a burden on the private candidate, then what is it that distinguishes Arizona’s system from public financing? A significant purpose of a public finance system is to subsidize candidates who opt into that system to compete with candidates who did not opt in. The court’s analysis raises doubts about that very purpose.
The Wall Street Journal:
New York City’s campaign-finance system could face fresh legal challenges as a result of a Supreme Court decision Monday struck down an Arizona law offering extra public funds to political candidates facing well-financed opponents.
“This is going to raise issues in New York, and you may have somebody who wants to be self-funded and who’s willing to challenge the rules,’’ said Laurence Levy, a former lawyer in Mayor Rudy Giuliani’s administration who is now in private practice… Levy suggested the most likely area of attack on New York’s law would be the portion that provides extra money to candidates facing an opponent who exceeds a spending limit — $6,426,000 in mayoral contests.