Where to Now on Public Financing?Zephyr Teachout in The New York Times, June 27, 2011
What the Court Did and Didn't Do
June 27, 2011
Zephyr Teachout is an associate professor of law at the Fordham University School of Law.
Perhaps the most important part of the McComish opinion is what it doesn’t do. It struck down public disbursements that are triggered by another candidate's spending, or by another interest group's spending. But it did not touch public financing generally, and did not touch automatic matching funds.
After the court's ruling, the future of reform is going to be in adopting low-dollar matching funds. This means that after McComish, the future of reform is going to be low-dollar matching funds. States can still set up systems whereby candidates can get $5 for every $1 they raise. (These systems are especially powerful because the Internet makes low-dollar fund-raising so simple.)
The opinion will require some states and municipalities to overhaul the triggering part of their existing systems, but the majority's refusal to touch automatic matching funds should encourage legislators to pursue low-dollar matching fund reforms. They are critical to recruiting non-wealthy candidates to run, and protecting them from becoming totally dependent on wealthy donors. Preparing for this decision, a federal bill, the Fair Elections Now Act, has been introduced that uses matching funds -- not triggers -- as its basis.
What we’ll see in coming years is more of this: a single-minded focus of reformers on passing $4-to-$1, $5- $1, and even $10-$1 matching funds laws. This is good news because after Citizens United, some thought that the Supreme Court might even take a hatchet to public financing of campaigns more generally; in McComish, the Supreme Court had a clear opportunity to chart new territory and didn’t do it.
This shouldn't obscure the fact that the majority of the court has, in the words of an ex-colleague of mine, “went and got drunk on the First Amendment.” According to Justice Roberts and the majority of the current Supreme Court, the First Amendment was designed to make sure that self-financed millionaire politicians spend as much money as possible without worrying.
An extended exchange in the oral argument in McComish revolved around whether self-funded candidates might have to “think twice” about spending an extra $10,000. The lawyers defending the Arizona law argued that thinking twice was not a burden. Justice Roberts countered that thinking twice might be a burden. He isn’t wrong that politicians will always be making strategic decisions, and that those decisions will depend in part on funding regimes. But he’s wrong to equate rich people's strategic thinking and government censorship.
Justice Kagan is going to be an impassioned and important defender of public efforts to combat corruption. All the evidence suggests that the carefully designed Arizona system led to some more strategic thinking, and a lot more public debate. As Justice Elena Kagan says in her dissent, “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.”
One of the case's nice surprises is that Justice Kagan is going to be an impassioned and important defender of public efforts to combat corruption. She ends her dissent with the plea that: “Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals. Truly, democracy is not a game.”