States Weigh Steps After Public Finance Ruling

In the wake of a Supreme Court ruling that struck down a public campaign financing provision in Arizona, states with similar laws are weighing their next steps.

North Carolina became the first state, in 2002, to provide full public financing for judicial campaigns. It has a provision like the “trigger funds” mechanism that was voided by the Supreme Court (see Gavel Grab).

Successes of North Carolina’s systems were spotlighted in a Greensboro News & Record blog: “Before public financing, a couple of chief justice candidates — Henry Frye and Bev Lake — each spent in the ballpark of $1 million in 2000. Now most statewide judicial candidates are taking public funding of around $250,000. Even better, there hasn’t been a flood of special-interest money barging into the picture, either.”

If North Carolina’s law is successfully challenged in court, or if the legislature moves the mechanism from existing law, there may be a “crippling effect” on public financing, the blog suggested.

A different view was offered by Damon Circosta, executive director of the N.C. Center for Voter Education, in a Burlington Times News report.  “The public financing system will continue,” he said. “Just matching funds will not be available.”

Circosta, whose group is a JAS partner, told North Carolina News Network, “It won’t make a big difference either which way on who decides to opt-in to public financing and who does not,” He added, “I’m still thinking we’re going to see robust participation from candidates from all across the political spectrum – incumbents, challengers, men, women.” (more…)

Tuesday Gavel Grab Briefs

A commentary in The Nation about the Supreme Court’s Arizona Free Enterprise Club v. Bennett decision cited Justice at Stake in discussing those reformers who found a measure of hope in the ruling.

The article quoted Bert Brandenburg, executive director for Justice at Stake, as saying, “Today’s ruling is disappointing, but not fatal for America’s courts. State judicial elections are drowning in special-interest spending.” He added, “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.”

In other dispatches about fair and impartial courts:

  • The New Jersey Senate voted to confirm Gov. Chris Christie’s nomination of Anne Patterson to the state Supreme Court, following a year-long stalemate, according to a Newark Star-Ledger report.
  • “The longer the judiciary rejects cameras [in the courtroom], the longer it will prolong public ignorance about the courts,” stated an editorial in the Scranton (Pa.) Times-Tribune.
  • A constitutional challenge involving back pay for U.S. judges was returned by the Supreme Court to the U.S. Court of Appeals for the Federal Circuit, according to a Blog of Legal Times article. To learn background about the case, see Gavel Grab.

Editorial: Finance Ruling a Setback for Democracy

In two national newspaper editorials, a Supreme Court opinion that struck down part of an Arizona public financing law was alternatively condemned and saluted for its “silver lining.”

“The Supreme Court decision striking down public matching funds in Arizona’s campaign finance system is a serious setback for American democracy,” protested a  New York Times editorial entitled “The First Amendment, Upside Down.” The editorial said, “It takes away a vital, innovative way of ensuring that candidates who do not have unlimited bank accounts can get enough public dollars to compete effectively.”

A USA Today editorial, entitled “Public Finance Ruling Leaves a Silver Lining,” offered a different emphasis. It said “the big news from Monday’s ruling wasn’t that the Arizona law was struck down, but that the majority said it had no interest in killing public financing altogether. For anyone fed up with government going to the highest bidder, that’s reassuring.”

Some commentary took an entirely different view and applauded the ruling in Arizona Free Enterprise Club v. Bennett. The court voided a provision for matching or “trigger” funds, the extra dollars made available to publicly funded candidates when a privately funded opponent or group spent beyond a specific threshold. (more…)

Analyst: Finance Ruling has 'Surprisingly Good News'

A prominent election law analyst calls the Supreme Court’s Arizona Free Enterprise Club v. Bennett ruling a clear defeat for campaign finance proponents, yet he finds “surprisingly good news” in it.

Richard L. Hasen, a law professor who runs Election Law Blog, identifies the following “unexpected” good news in a commentary about the Arizona case that he wrote today for the New Republic:

  • “First, the Roberts Court seems to have retreated from the suggestion that all campaign finance laws, aside from disclosure, are in constitutional trouble.” The high court confirmed that its landmark Citizens United decision last year did not invalidate federal law regarding campaign contribution limits, he says.
  • Justice Elena Kagan “has emerged as a forceful intellectual voice for the constitutionality of reasonable campaign finance regulation.” She is “a pugnacious, take-no-prisoners’ writer on an issue about which she feels passionately.” Justice Kagan wrote the dissent in Arizona Free Enterprise Club v. Bennett, which was consolidated with another case, McComish v. Bennett.
  • The court “did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is ‘not our business.'”

Hasen concluded, “[W]e may not be seeing the full end of campaign finance law, at least not yet, and Justice Kagan has shown that the other side won’t go down without a fight.”

From a different vantage point, however, former Federal Election Commissioner Hans von Spakovsky says in a Heritage Foundation blog that the ruling “is in the best tradition of American liberty and freedom.” (more…)

Public Financing of Judicial Campaigns Highlighted

The National Center for State Courts issued today a special edition of its Gavel to Gavel publication, a report on state legislation affecting the courts; the special edition is about public financing of judicial campaigns.

The National Center for State Courts is a JAS partner. The Supreme Court’s decision in Arizona Free Enterprise Club v. Bennett prompted publication of the special edition. Arizona Free Enterprise Club v. Bennett was consolidated with another case, McComish v. Bennett.

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.” (more…)

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.” (more…)

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. (more…)

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.

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.”