“Interest Groups” Author Examines Supreme Court’s Stand on Public Financing

by Shaun Manning on July 20, 2011

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Guest blogger Robert G. Boatright is an Associate Professor of Political Science at Clark University and the author of Interest Groups and Campaign Finance Reform in the United States and Canada, available now from the University of Michigan Press. Here he considers the Supreme Court’s decision to strike down an Arizona campaign finance law.

On June 27, the U.S. Supreme Court ended its term by handing down its decision in the Arizona Free Enterprise Club PAC v. Bennett case.  By a 5-4 margin, the Court struck down a provision of Arizona’s campaign finance system that allows publicly funded candidates to receive state funds to match the spending of privately funded opponents.  While there is much one could argue with in the Court’s decision, the decision was unsurprising and its immediate implications for campaign finance at the federal level are likely nonexistent.  Yet the decision has been met with applause from those who support further deregulation of U.S. campaign finance, and with consternation from the supporters of state involvement in reining in campaign spending.  It is not the decision itself that matters, but the fact that the decision is the fourth is a series of decisions in which the Court has continued to chip away at campaign finance restrictions.  It provides further encouragement to those who would continue to challenge spending restrictions, disclosure laws, coordination restrictions, and other types of limits on campaign spending.

I make this claim not as a student of constitutional law (for I am not one), but as a student of American interest groups and election politics.  In my recent book, Interest Groups and Campaign Finance Reform in the United States and Canada, I explain the responses of American interest groups to the Bipartisan Campaign Reform Act (BCRA) of 2002.  This has been a tremendously unsettled decade for election finance, and we need to consider the Court’s decision in this context.

Let us consider the particulars of the case.  Arizona arguably has one of the two or three most innovative systems of public financing.  The Arizona law was introduced by referendum in 1998, following a string of campaign finance scandals.  Candidates for state office are offered a flat grant from the state if they can raise a qualifying number of $5 contributions.  Candidates who receive the flat grant are then prohibited from raising further money.  If, however, a candidate who has opted to take the grant is running against an opponent who has declined the grant, the publicly supported candidate receives ninety-four cents for every dollar that his or her privately funded spends above the amount of the grant.  To give an example, candidates for the state legislature in 2010 were permitted to raise no more than $3,500 (including their own money), and, if they opted to receive public funding, they then received $14,000 for the primary and $21,500 for the general election.  If a publicly financed candidate was running against a general election opponent who raised and spent more than $21,500, the publicly financed candidate was eligible to receive almost a dollar-to-dollar match, up to $64,500, or three times the amount of the flat grant.  In addition, the publicly financed candidate also could receive matching funds if independent groups made expenditures on behalf of the privately financed candidate, although the $64,500 limit still applied.

The Supreme Court struck down the matching fund provision, contending that it imposes a burden upon the speech of privately financed candidates and independent groups.  It did not strike down any other aspects of the program.  Although the provisions do not limit the speech of candidates or groups directly, Chief Justice John Roberts’ majority opinion contended that the law imposes a burden upon candidates and groups because it has the effect of giving money to their opponents every time they choose to speak.  While proponents of the law argued that the law increases speech, the majority opinion states that “any increase in speech resulting from the Arizona law is of one kind and one kind only – that of publicly financed candidates.”  The government can subsidize speech, but it cannot choose one group’s speech over another in this manner.  Furthermore, the majority objected to the fact that the law’s aim (as explained by its proponents) is to “level the playing field.”  This is a goal the Court has never accepted.

It is natural to consider the Arizona decision in the shadow of the Court’s most consequential campaign finance decision of the past decade, the Citizens United v. FEC decision, a ruling which permitted unlimited independent campaign spending by corporations.  The Arizona decision will not have the immediate effect that Citizens United had; according to some, Citizens United was responsible for much of the independent advertising in the 2010 elections.  The division on the Court, while still evident, appears not to be as bitter; the minority opinion, written by Justice Kagan, is spirited but not as harsh as Justice Stevens’ minority opinion in Citizens United.  The Arizona case is also more modest than Citizens United in its doctrinal effects; as Roberts notes, it is similar to the Davis v. FEC decision, a 2008 ruling by the Court which invalidated the so-called “millionaire’s amendment,” a provision of BCRA increasing contribution limits for candidates who ran against self-financed opponents.  The Arizona case does not reverse any prior rulings, nor does it have obvious implications at the federal level since no federal program resembles Arizona’s.  And, most notably, the Court explicitly stated in the decision that the decision was not a statement regarding public financing in general. “Evaluating the wisdom of public financing as a means of funding political candidacy,” the majority opinion declares, “is not the Court’s business.”  The Court appears here to be drawing a bright line, just as it did in Citizens United when it declined to strike down disclosure requirements.

Why is this case important, then?  It is consequential largely because it further contributes to the uncertainty surrounding what the long-term status quo will be in American campaign finance.  As I argue in my book, American interest groups have spent the past decade in a state of confusion over what they can and cannot do.  Some groups have responded by pushing the limits of the law, acting in ways they know to be illegal, either because the Federal Election Commission is too weak and too slow to limit their activities or impose substantial fines or because they wish to force the issue in the courts.  Others have simply been baffled by efforts to figure out what they can and cannot do.  Politicians, as well, cannot help but wonder what the Supreme Court will do to existing campaign finance law in the long run.  The major piece of public financing at the federal level, the system for providing matching funds to presidential candidates, is in dire need of repair.  The Court’s decision certainly will not help serious discussions of how to reform the system, and it will likely abet the efforts of those who would do away with it altogether.  In short, the Arizona decision will keep everyone wondering how far the Court plans to go.

My book is a consideration not only of how American interest groups have responded to the changes in campaign finance law of the past decade, but of how we can understand our own campaign finance by comparing them with those of Canada, a country with similar laws but a very different political system and political culture.  I do not want to belabor the Canada comparison here – interested readers can consult the book or look at an update on the recent Canadian election available on my website. Canada has its own problems, to be certain.  One problem Canada does not have, however, is uncertainty about where the Supreme Court stands on campaign finance law.  The Canadian Court has been somewhat of a player in campaign finance reform there, but by and large it has deferred to politicians in letting them solve problems in the financing of elections.  Yes, we Americans are a bit leery of trusting our politicians to make election laws, but it would be nice if our courts could trust politicians (and the people) a little bit more in this arena.  At the very least, it would be refreshing to have a few elections in which all involved could have confidence that the core of our campaign finance system was here to stay.

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