U.S. Supreme Court Strikes Down Some Public Campaign Financing Provisions

And the question for this blog is “how does the Court’s decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett impact New York City’s matching funds program?”

The first thing to keep in mind is that this is a very narrow ruling.  The case is not a broad challenge to public financing laws, but challenges the provisions of Arizona’s “Clean Elections” law that grants a candidate additional matching funds where he or she is outspent by a non-participating candidate or independent groups.  (These are commonly known as “trigger” provisions, but are referred to by the court as “matching fund provisions.”)

The 5-4 majority, in an opinion written by Chief Justice Roberts, found that trigger provisions violate the First Amendment.  The Court’s reasoning is that where a trigger provision exists, privately financed candidates and independent expenditure groups will not want to continue spending money over the threshold amounts.  Thus, trigger provisions serve to impermissibly limit the spending of privately financed candidates and independent expenditure groups.

The clear message from the Court is that government does not have a role in trying to level the electoral playing field.

But how will this impact New York City’s program?

According to a statement from the NYC Campaign Finance Board’s Executive Director, it shouldn’t because Arizona’s law differs greatly from New York City’s.  Arizona’s “dollar for dollar” match is what makes that state’s law problematic.  In contrast, where a participating candidate in New York City faces a high spending, non-participating candidate, New York City’s law increases the matching rate, increases the maximum public funds for which a participant may be eligible, and increases or lifts entirely the spending limit.

I am not so certain that all of New York City’s program can survive a challenge.  The Court’s majority takes a very clear position – campaign finance provisions that are intended to combat corruption are acceptable, but those intended to equalizing speech are not.  If New York City’s law is challenged, The answer may turn on whether increasing the matching rate where a high spending candidate is in the race has a valid anti-corruption justification.

At least one commentator feels that New York City’s law may be in major trouble.