I guess it’s “unforeseen” if you’re oblivious to the obvious…

Published on October 10, 2008
by Sean Parnell

File Under: "Clean" Elections, Faulty Assumptions, Taxpayer Financing

We've been following closely the Goldwater Institute's case in Arizona challenging their taxpayer-funded campaign scheme. Readers may recall that, based on the Supreme Court's ruling in Davis v. F.E.C., U.S. District Court Judge Roslyn Silver ruled that the "matching funds" provision of Arizona's so-called "clean elections" program was unconstitutional. After a great deal of educational efforts by CCP, it was this ruling that led to the final collapse of efforts in New Jersey to extend and expand their own welfare-for-politicians experiment in early September. Although Judge Silver acknowledged that the "matching fund" were unconstitutional, she held off on preventing the program from moving forward with dispensing the additional money to candidates participating in the program. Instead, she asked attorneys for both sides to prepare arguments over whether the First Amendment rights damaged by the program were sufficient to change the rules this close to the election (presumably the matching funds are history either way after this election).

Reading this article reporting on yesterday's hearing, I had to chuckle over the assertions of the attorney defending the "clean elections" program and why the "matching funds" should be distributed despite the fact that they are unconstitutional:

Brad Phillips, a California-based attorney representing the Clean Elections Institute, said revoking publicly funded candidates' ability to collect matching funds would unfairly punish them for using the system and hold them accountable for unseen risks that the provision could be swept away in the middle of a campaign.

"In good faith, they relied on the act as well as the matching funds," said Phillips, adding that the candidates would be ill-prepared to respond to last-minute advertisements from their opponents.

I suppose it's true that, in "good faith," these candidates relied on "matching funds" to suppress the First Amendment rights of those with the nerve to criticize them or at least support someone else. It's the "unforeseen risks" bit that's a little out of place.

Our friends at the Institute for Justice filed a lawsuit challenging Arizona's "matching funds" provision back in January of 2004, and after an initial dismissal by the trial court the case was reinstated by the 9^th Circuit in August 2007.

And of course, after originally being filed at the District Court level in June of 2006, Davis v. F.E.C. was accepted by the Supreme Court in January 2008, argued in April, and in June of this year the Supreme Court struck down the "Millionaire's Amendment."

And it's not as though advocates of "clean elections" didn't understand the possible impact on "matching funds" if the Supreme Court struck down the "Millionaire's Amendment." In the amicus brief jointly filed in Davis v. F.E.C. by the Brennan Center, Campaign Legal Center, Democracy 21, and Public Citizen (4 of the leading advocates of taxpayer-funded political campaigns), the second of three arguments made focuses exclusively on trying to persuade the Court not to address "matching funds" provisions in "clean elections" programs, strongly suggesting they were fully aware that the outcome in Davis could potentially strike down such schemes.

Finally, immediately following the Supreme Court's ruling in Davis v. F.E.C., Loyala University law professor Rick Hasen (one of the brighter and more rational "reform" advocates in the country) wrote on his blog that  the decision "calls all [matching funds] provisions in public financing systems into question

So, "unforeseen" doesn't quite seem right now, does it?