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Clean Elections Are Constitutional

By / 3.30.2011

When the U.S. Supreme Court last year ruled in Citizens United that incorporated entities have the same First Amendment rights as individuals to spend money in political campaigns, it upended a century of settled law aimed at limited special interest influence in American politics. The predictable result was a torrent of new spending in the 2010 midterm election, with nearly $300 million in electioneering ads by outside interest groups, half of which was undisclosed.

On Monday, the Supreme Court waded back in to the campaign finance issue when it heard oral arguments in McComish v. Bennett, concerning one of the most sweeping and successful forms of campaign finance regulation to emerge in recent years, publicly funded “Clean” or “Fair Elections”.

The case in question involves a challenge to the constitutionality of a specific “trigger funds” provision of Arizona’s Citizen’s Clean Elections Act of 1998, the law which established voluntary public funding for qualifying candidates for any state office in Arizona. Under the challenged provision, candidates who opt in to the Clean Elections system receive matching funds beyond their initial allocation if they are outspent by a privately funded opponent. The aim of the provision, as of the law in general, is to provide serious and hardworking candidates who attract broad-based constituent support in the form of small donations and who agree to forego private special interest contributions with enough money to mount a credible campaign.

The law is being challenged by a group of Arizona candidates and political committees who claim that triggered funds to participating candidates have a “chilling” effect on the First Amendment free speech of privately funded candidates and independent spenders. The Ninth Circuit Court of Appeals rejected the challenge last May, which concluded that no candidate or group had been prevented from spending money by the law.

Contrary to petitioners’ characterization of the Arizona law as curtailing First Amendment speech, Arizona’s Clean Elections program places no limits on the ability of privately funded candidates or independent spenders to enter the political debate, including by spending far in excess of the triggered funds provided to participating candidates. Instead, as argued by former Reagan Solicitor General Charles Fried in an amicus brief to the Court:

Arizona extends public financing to any candidate who meets certain qualifications and agrees to forego fundraising from private sources. Thus, if the government violates no one’s First Amendment rights, does not silence, suppress or deter anyone’s speech by speaking a contrary message in its own voice, so most assuredly it burdens no speech when it makes funds available to all comers on a viewpoint neutral basis. More speech may answer speech but it does not silence it. What effect speech has on its audience the First Amendment leaves up to the audience.

The brief, which was signed by a bipartisan committee of former Senators, Representatives, and Governors on behalf of Americans for Campaign Reform, established in no uncertain terms the constitutional imperative of voluntary public funding as an effective means of expanding and enhancing First Amendment free speech: “The law at issue in this case is not, in the words of the First Amendment, a law ‘abridging the freedom of speech.’ Rather, it adds voices to the political forum and thereby expands speech… If there is one fixed star in the constitutional firmament, it is that arguments seeking to compel a reduction in speech face an extraordinary hurdle.”

That message, at least, the Court heard loud and clear in the oral arguments on Monday: public funding writ large, regardless of the specific provisions of Arizona’s law, does not violate the Constitution. In the the post-Citizens United world of big spending by corporate and union interests, public funding may be the only means left to effectively combat the power of special interest money in politics.

A decision is expected before the end of the Supreme Court Term in June.