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Wednesday, September 3, 2008

Two cents on Clean Elections, Davis, and the Arizona decision

Reports have Assembly Speaker Joe Roberts, D-Camden, saying that New Jersey’s Fair and Clean Elections Pilot Project Act will have to be put on hold in light of an Arizona federal court decision.

That seems like a pretty rash decision.

As background to those statements, this preliminary ruling in Arizona federal court held that matching fund provisions, which hand publicly-financed candidates extra money when a self-funded opponent exceeds a certain amount of expenditures, are unconstitutional.

Judge Roslyn Silver said they infringe upon the free speech rights of candidates to spend as much money as they want on their own election. She could now use the court's power to prevent publicly-funded candidates in Arizona from receiving matching funds, or hold further hearings on the issue.

The closely-followed case comes after a Supreme Court decision earlier this year, Davis v. FEC. In that case the court found a piece of federal financing law called the “Millionaire’s Amendment”, which appears similar to matching fund provisions in the Arizona law or rescue money provisions in New Jersey Clean Election law, to also be in violation of free speech rights, a group of rights that includes spending funds on one’s own election, according to U.S. courts.

From that basis, the new Supreme Court looked at the constitutionality of the so-called “Millionaire’s Amendment”, which comes into play and relieves publicly-financed candidates of normal campaign fund restrictions in the event their self-funded opponent spends a certain amount money.

The court found the “Millionaire’s Amendment" infringes upon free speech, by burdening self-funded candidates and their ability to spend as much of their own money as they please with concerns about advantages such action would provide to their publicly-funded opponents because of the “Millionaire’s Amendment”.

Days after the Aug. 29 decision in Arizona, Mr. Roberts issued statements calling for putting the state’s Clean Election plan on hold.

"Putting the program on hiatus next year will give Congress and the courts more time to sort out the many issues that have been raised and the ability to give states clear guidelines to follow,” said Mr. Roberts, according to "It is disappointing that an activist court half a continent away has thrown such a huge obstacle in the way of a good government ethics reform that was making real headway in changing politics in New Jersey for the better.”

At first Mr. Roberts’ statements seemed plausible, given the damage that constitutional challenges from privately financed opponents in the heat of important New Jersey races could cause, should the program continue on as if nothing happened at the Supreme Court or in Arizona. But some cursory research seems to show that the two decisions might not spell as much doom for Clean Elections as many seem to believe.

It seems that nowhere has Arizona’s matching funds provision been compared, in-depth, with portions of the New Jersey law, and some observers that followed the Supreme Court decision on Davis have drawn the conclusion that the federal “Millionaire’s Amendment” and the rescue provisions in New Jersey’s law may have significant differences.

Paul S. Ryan, an associate legal counsel at the Campaign Legal Center, wrote a paper entitled “The Reports of My Death Are Greatly Exaggerated,” in which he points out that:

“Missing from this commentary, however, has been a thoughtful discussion of the differences between the Millionaire’s Amendment struck down in Davis and public financing program trigger provisions, which were not analyzed by the Court in Davis.

“Differences between the two should lead courts to conclude in the future as they have in the past that public financing program trigger provisions are not unconstitutional. Any anxiety on the part of policy makers regarding the impact of the Davis decision on public financing programs is, at the very least premature, if not entirely unwarranted.”

One big difference, as pointed out by Mr. Ryan, is that the Supreme Court decision in Davis did not examine an important difference between the federal system and the state public-financing schemes, where candidates accepting public financing also accept many financial constraints that self-financed candidates do not face during the campaign.

As Mr. Ryan said:

“Comparing a system in which candidates start under the same rules (e.g., the
Millionaire’s Amendment system) to a system in which candidates start under different rules (e.g., a public financing system) is comparing apples to oranges. The Supreme Court in Davis gave no consideration whatsoever to the latter scenario—the issue simply was not before the Court.”

Although Mr. Ryan’s evaluation came prior to the Arizona decision, that decision is not settled at all, and the judge there has not even held hearings and taken any real action on the subject.

The arguments presented by Mr. Ryan and others that demonstrate serious differences between the federal law thrown out by the current Supreme Court and the rescue money in New Jersey law may emerge there. It could result in a vindication of the public financing system, which so effectively removes the corrupting power of large private donations and special interests from entering the world of public interest.

So, Mr. Roberts and others should consider holding their horses.


christian smith-socaris said...

Mr. Forester:

Mr. Ryan works for the Campaign Legal Center as FEC Director, he does not work for the FEC [that agency would never let an associate counsel publish a paper under their agency title].

Greg Forester said...

Thanks for the info!