Arizona’s matching funds system for publicly financed campaigns may be going down, but it probably won’t go alone.
The U.S. Supreme Court’s decision to block Arizona’s Clean Elections system from distributing matching funds is a bad omen for similar systems in other states, and could portend their end if the court rules that matching funds are unconstitutional, according to legal experts and campaign finance reform advocates.
The precedent set in Arizona’s case, as well as a 2008 Supreme Court ruling, could derail matching funds-based systems in Connecticut, Maine, New Mexico, North Carolina and Wisconsin.
Like Arizona, those states use campaign finance systems that provide extra money to publicly funded candidates whose privately funded opponents outspend them. The Goldwater Institute, which led the fight against matching funds, argued that Arizona’s system violated the First Amendment rights of privately funded candidates by punishing them for their campaign spending.
It’s those systems, in which public funding is triggered by traditional candidates’ spending, that the Supreme Court appears to have in its crosshairs.
“The Supreme Court decision was very troubling and we’re definitely keeping a close eye on it,” said Beth Rotman, the director of Connecticut’s Citizen Election Program. “I think the Arizona decision is not a good sign for what the Supreme Court might be thinking about trigger funds.”
In a 2008 ruling in Davis v. Federal Election Commission, the Supreme Court struck down the “millionaire’s amendment” of the federal Bipartisan Campaign Reform Act, which raised fundraising limits for candidates who faced wealthy, self-funded opponents. The court has not yet agreed to hear the Goldwater Institute’s case against the Citizens Clean Elections Commission, but in the wake of its June 8 ruling, both sides are confident that Arizona’s matching funds system will soon be a thing of the past.
Todd Lang, director of the Clean Elections Commission, said the court’s willingness to halt matching funds in the middle of the campaign cycle leaves little doubt as how it will eventually rule in the case. Clint Bolick, the director of Goldwater Institute’s legal division, said that will have ramifications for campaign finance systems at the state and federal levels.
“With luck, we may have helped take taxpayer funding of campaigns out of the equation. Certainly if we prevail on the merits that will be the case,” Bolick said. “Other states do have similar systems. So this lawsuit reverberates tremendously.”
Nick Nyhart, president of the campaign finance advocacy group Public Campaign, said Maine’s system is the one that most closely resembles Arizona’s, but Connecticut is the state that should be the most worried. So far, Maine has avoided legal challenges to its campaign funding program, while Connecticut is in the midst of a long-running lawsuit.
The American Civil Liberties Union and the Green Party are challenging Connecticut’s Citizen Election Program, and are awaiting a ruling from the U.S. 2nd Circuit Court of Appeals. The state argued that it is too late to halt the “rescue funds” given to publicly funded candidates because it would disrupt the election — unlike in Arizona, the state has already distributed matching funds to some candidates, including a $1 million disbursement to gubernatorial hopeful Dan Malloy.
But the plaintiffs are now pointing to Arizona to demonstrate that the First Amendment rights of traditionally financed candidates outweigh the obligation to publicly funded ones. Mark Lopez, one of the attorneys representing the Connecticut Green Party, said he has already written a motion asking the Supreme Court to halt future matching funds.
“We think what the Supreme Court has done sends a clear message that any reliance by candidates who are participating in these public financing programs … is outweighed by the First Amendment harm to the candidates who opt out of the system,” Lopez said.
Connecticut is not the only state facing a legal challenge to its matching funds system. Wisconsin next year will implement a matching funds system for state Supreme Court candidates, which has already seen two lawsuits filed against it. And a matching funds system for judicial candidates in North Carolina already survived a lower court challenge and the U.S. Supreme Court declined to hear the case.
But Damon Circosta, who heads North Carolina Center for Voter Education, said Arizona’s ruling could lead to changes in the state’s campaign finance system. Rotman said the lawsuits against Arizona’s system and its own may spur Connecticut to make changes as well.
“Our system is as blessed as blessed can be, so we’re moving full steam ahead this election cycle and anticipating no serious changes to the program between now and then,” Rotman said. “That being said, we’ll keep an eye on what goes on there. If the matching funds were to be struck down, we’d move to alter our program.”