Academic Advisor Joel M. Gora analyzes the Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennet, 131 S. Ct. 2806 (2011), which struck down the Arizona program for providing government “triggered” matching funds in political campaigns. Under that scheme, a publicly funded candidate, whose campaign is almost wholly funded by [...]
Don’t Feed the Alligators: Government Funding of Political Speech and the Unyielding Vigilance of the First Amendment
Filed Under: Jurisprudence & Litigation, Research, Tax-Financing, Tax-Financing Research, Tax-Financing State, Taxpayer Financed Campaigns, Jurisprudence & Litigation, Taxpayer Financed Campaigns, Arizona
Doug Kendall, writing in the Huffington Post, attempts a defense of Arizona’s flawed tax financing system—without ever addressing the system itself.
As Kendall sees it, state Sen. John McComish (R-Ariz.) has two problems. First, he’s the plaintiff in McComish v. Bennett, the constitutional challenge to an Arizona law that rescues tax-funded candidates from being outspent by their traditionally-funded opponents. Second, Sen. McComish “was forced to file an amended financial disclosure report, acknowledging that he had accepted from Fiesta Bowl officials a gift of more than $500 in value involving a trip to the Big 12 Championship in Dallas in 2009, and had not disclosed this fact as required by Arizona law.”
Of course, these two things have nothing to do with each other. There are laws regulating campaign finances, and there are separate laws regulating gifts to sitting legislators. Sen. McComish’s transgression has nothing to do with campaign finance law, or the case currently before the Supreme Court. Moreover, other members of the Arizona Legislature committed the same offense despite having availed themsleves of public financing. (You can find a sortable list of legislators who accepted tax funding here.)
CCP Chairman Brad Smith has this op-ed in tomorrow’s edition of the Wall Street Journal:
Should the government choose sides in elections? That is the core question at stake today when the Supreme Court hears oral argument in McComish v. Bennett, challenging Arizona’s tax financing system for political candidates.
Historically, the government’s role in elections was limited to managing the process of voting in a neutral, nonpartisan way. From an early date virtually every state and the federal government enacted laws prohibiting the use of state resources for campaigning.
In the 1976 case of Buckley v. Valeo, however, the Supreme Court upheld the constitutionality of government directly funding candidate campaigns, so long as candidates remained free not to participate. Under these programs, candidates received a lump sum from the government in exchange for limiting their own fundraising and spending.
In recent years, Arizona and a handful of other jurisdictions have gone far beyond what was approved in Buckley by offering candidates “rescue” funds. In this scheme, if a tax-subsidized candidate is outspent by an unsubsidized candidate, the government gives additional money to the participating candidate—usually enough to match the amounts raised by the non-participating candidate. And if a group of citizens, such as MoveOn.org or the Club for Growth, spends money to criticize a participating candidate, the government gives still more “rescue” money to that candidate.
Read the whole thing at the WSJ.
In 1998, Arizona enacted the “Clean Elections Act” via ballot initiative. The law is a statewide tax financing program for political candidates. This case challenges the “matching funds” aspect of the Act. Under “matching funds,” a candidate who opts into the tax financing system will receive extra government subsidies if they face a privately-funded opponent who spends beyond a certain “trigger.” Independent spending in a race outside the control of candidates also triggers additional government subsidies.
Petitioners challenge the case under Davis v. Federal Election Commission, where the Supreme Court held that campaign finance schemes designed to level the playing field between candidates did not serve a compelling state interest.
Yesterday, the U.S. Supreme Court decided to hear arguments in Arizona Free Enterprise v. Bennett. Observers expect the court to hear arguments in March and render a decision by the end of June.
The Institute for Justice, which represents independent political groups in the case, issued a press release. The Goldwater Institute, which represents traditionally funded Arizona candidates, also issued a statement.
The Center for Competitive Politics plans to file a friend-of-the-court brief in this case in advance of oral arguments. CCP filed a brief in June of 2009 at the U.S. District Court level supporting the plaintiffs and a brief this September in support of the group’s cert petition.
Our friends at the Institute for Justice have produced this video explaining the twisted logic behind “clean elections” schemes in states such as Arizona, Maine and Florida:
In this report, the author explains how forms of state legislation stifle the political speech of political entrepreneurs, those individuals and organizations who form and grow new political voices and movements. Specifically, the report examines the effects of two types of state campaign finance regulations that act as barriers to independent citizen groups: contribution limits and political action committee (PAC) requirements. A lack of appreciation for the role of political entrepreneurs in promoting innovative public policy and electoral competition on the part of those in power has resulted in the erection of barriers for outside groups who wish to speak out. The report concludes that instead of encouraging civic engagement, states are attacking independent political advocacy through unnecessary, speech-limiting regulations.
Filed Under: Contribution Limits, Contribution Limits Research, Contributions & Limits, External Relations Sub-Pages, First Amendment, Independent Speech, Issue Advocacy, Research, Super PACs, campaign contributions, Contribution, Contributions & Limits, Disclosure, Expenditure, Political Committees & 527s, Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming
The results of Tuesday’s primary elections illustrate that money doesn’t always buy voters’ love. If that’s the case, though—money doesn’t buy elections—why do we still have a very low $2,400 contribution limit at the federal level?
In this research brief, CCP Academic Advisor David M. Primo, an Associate Professor of Political Science and Business Administration at the University of Rochester, answers five questions related to taxpayer-funded campaigns. Proponents of taxpayer financed campaigns often argue, among other things, that these programs enable greater political speech, promote public sentiment about government, boost voter participation and electoral competitiveness, and diminish both corruption and “special interest” influence. Primo succinctly takes each one of these charges and provides an overview of existing research on the topic to assess the validity of the “reformers’” claims. Predictably, in regards to each of the five claims, the research is either inconclusive on the subject or the opposite of what tax financing proponents claim is true.
In May 2010, the Government Accountability Office, or GAO, released its follow-up report on taxpayer funding for political campaigns. This report supplemented GAO’s initial study from 2003, which found that the two states with full tax funding – Maine and Arizona – enjoyed none of the promised benefits from those programs. Section 310 of the Bipartisan Campaign Reform Act of 2002 mandated that GAO study and report on these laws. Since the first tax-funded legislative races were only held in 2000, the GAO’s disappointing findings in 2003 could be explained by the lack of data. Advocates hoped that this latest report, which includes data from elections in 2004 through 2008, would provide welcome support for these reforms, such as the Fair Elections Now Act currently before Congress.
Unfortunately for supporters of tax funding, the GAO’s 2010 report concludes, once again, that the benefits supposedly derived from tax funding don’t occur in any way that can be shown by generally accepted techniques of analysis.
The belief in reform through tax funding for campaign is not based on fact. Like an article of religious faith, it is a belief that transcends proof. It may be based on a general antipathy toward politics or capitalism, or a unfounded confidence that some “silver bullet” can be found to make governance less contentious. The GAO Report thus will likely have little influence on the debate about reform. Unfortunately, the movement toward taxpayer funding reform will proceed at a level of abstraction that is not just unrealistic, but misleading