Benjamin Barr

'Clean Elections' Chill Free Speech

Posted on September 18, 2005 | Type: Op-Ed | Author: Benjamin Barr
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PHOENIX- On the heels of having its earlier campaign finance system declared unconstitutional, the Albuquerque City Council is sending the "Open and Ethical Elections Code" to a citywide ballot.

If adopted, the law would create a system for publicly financing mayoral and council campaigns.

But Albuquerque would be well served to think carefully before it buys into the latest fad in campaign finance reform. The proposed Albuquerque program is similar to Arizona's Clean Elections system, which was largely a solution in search of a problem, and has left many problems in its wake.

Arizona's Clean Elections Act barely passed in 1998 with 51 percent approval. And polling showed that only 8 percent of voters knew that Clean Elections would give taxpayer money to politicians. It remains highly suspect and subject to contentious debate.

Despite its stated purpose of "cleaning up" elections, it has done little more than create a highly complex system that gives taxpayer money to politicians and chills free speech. The only "cleaning up" has been of taxpayers' pockets.

The system's proponents argued that publicly financed campaigns would result in more candidates running for office. In Arizona, the facts tell a different story.

A report by the U.S. General Accounting Office found no notable difference in the average number of state legislative candidates between the 1996 and 1998 elections, prior to Clean Elections, and the 2000 and 2002 elections that followed the implementation of the law. What's more, the most recent data from the Citizens Clean Elections Commission shows that in 2004 there were 20 fewer legislative primary candidates than in 2002, a drop of almost 10 percent.

Likewise, the percentage of contested races has been almost flat, and the incumbent re-election rate is unchanged.

Clean Elections has also fallen short of its goal of more independent politicians. A Goldwater Institute analysis found publicly financed legislators vote no differently than their privately financed peers. Other, more subtle, influences affected lawmakers. The ideological beliefs of the individual politician, local district preferences, and lobbying interests all influenced voting patterns. As a result, publicly financed legislators are in no sense "cleaner" than their privately financed peers in Arizona.

Even more troubling is that Arizona's Clean Elections system runs afoul of the Constitution.

First, the system gives a head start to the taxpayer-financed candidate. Candidates who pay for their own campaigns are forced to file numerous reports so the state can monitor their finances and campaign activities. Meanwhile, their taxpayer-funded opponents receive free state money and bear few fund-raising expenses.

Moreover, the Clean Elections Act chills discussion and debate. The law deters independent citizens and groups from running ads or spending money against opposing candidates. Why? Because the state automatically matches independently raised and spent dollars above threshold amounts. Why spend $20,000 if your opponent might automatically receive that amount from the state?

The Eighth Circuit Court of Appeals recognized this problem in Day v. Holahan, when it struck down a similar campaign finance system in Minnesota precisely because "the individual or group intending to contribute to (a participating candidate's defeat) becomes directly responsible for adding to her campaign coffers."

Like the Minnesota and Arizona campaign finance systems, Albuquerque's proposed "Open and Ethical Elections Code" is flawed. It creates an unfair advantage for taxpayer-financed candidates and chills political speech. By monitoring private candidates and providing Albuquerque-sponsored candidates with matching funds, the program also puts the control of debate in the hands of government instead of leaving it in the hands of the people.

Albuquerque promises a "level playing field," competitive elections, and the avoidance of "undue influence." But Arizona's experience shows that if it's too good to be true, it probably is.

As Albuquerque stands on the threshold of "cleansing" its political system, citizens need only look to their western neighbor to the west for results. Increased candidate participation? Not here. Reduced incumbency? Not here. More independent votes? Not here. Albuquerque should go back to the drawing board and consider adopting measures for transparency and disclosure, with an eye toward respecting the constitutional rights of its citizens and providing truly competitive elections.

Benjamin Barr is a constitutional analyst with the Phoenix-based Goldwater Institute, a public policy research organization.

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