Subsidizing Democracy: How Public Funding Changes Elections and How It Can Work in the Future

7. Clean Elections at the Supreme Court

7 Clean Elections at the Supreme Court On March 28, 2011, the United States Supreme Court heard oral arguments in McComish v. Bennett, a First Amendment challenge to the matching funds provisions of Arizona’s Clean Elections law. The case was consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (since they were argued together, I refer to both cases with the McComish citation). In the weeks leading up the argument, supporters of public funding maintained that it was making elections fairer and more democratic, and that matching funds were an integral component of the program’s success. Meanwhile, its opponents claimed that the incentives that matching funds create were effectively destroying the speech rights of nonparticipating candidates. Given the Court’s recent decisions on campaign finance cases, on the morning of the argument it seemed all but certain that the justices would move to strike down matching funds. It was also possible that they would go further. Indeed, as the Court convened, any number of outcomes were possible, and it is not much of a stretch to say that the future of public Clean Elections at the Supreme Court 125 election funding in the United States was at risk. Accordingly, interested parties on both sides contemplated the potential ramifications for public funding programs like Clean Elections. Would the Court, against expectations , uphold matching funds and preserve Clean Elections as originally constructed? Would it sever the matching funds and leave the subsidies intact? Or would it take this opportunity to eliminate public funding as a regulatory tool altogether? The answers to these questions would not only determine the fate of existing programs but also set the trajectory for future public funding reform efforts. Gaming Arizona? The question in McComish turned on the constitutionality of Arizona’s matchingfundsprovisions.LikethoseinConnecticutandMaine,theClean Elections law in Arizona allowed for the provision of matching funds allocations to participating candidates when they were outraised or outspent; the extra subsidies mandated financial parity even when some candidates chose not to participate in the program.1 In Arizona primary elections, matching funds were triggered when money was spent. In general elections , participating candidates were matched either when their opponent reported raising money or when an independent expenditure was made against them. In either instance, expenditures beyond the publicly financed candidate’s subsidy amount were matched dollar-for-dollar to an aggregate limit of three times the original allocation. The importance of matching funds to participating candidates, as well as their uniqueness compared with the dynamics of a partially funded system, is perhaps best understood through a hypothetical comparison of publicly funded candidates in partially and fully funded states with spending limits of $25,000 running against an opponent who raises and spends $75,000 (see Table 7.1). In a system of partial funding, in which a candidate receives a subsidy equivalent to 45 percent of the spending limit, a publicly funded candidate would still be facing a spending deficit of nearly $64,000. In Arizona’s Clean Elections system, however, the opponent’s expenditures would trigger matching funds allocations, preserving funding equality. Since participating candidates can be outspent in only the most exceptional cases, matching funds provide a strong incentive for candidates to accept subsidies. 126 Subsidizing Democracy From the perspective of the nonparticipating (traditional) candidates I interviewed in 2007, once the original subsidy threshold was breached, a dollar spent was in effect a dollar contributed to the other side. Traditional candidates therefore paid careful attention to expenditure levels so as not to benefit a publicly funded opponent. One traditional candidate described a campaign that, in order to mitigate this effect, was “very calculating in how much we sent out to keep spending as low as possible.” Another traditionally funded incumbent reached the same conclusion, saying, “If I raised $100,000 and he capped out at $69,000, that would give me a $30,000 advantage. I don’t know that I could raise that much, so I think we would probably be equal. I would spend a lot of time and money raising that money...just [to] give it to him.” Still another incumbent clearly articulated the degree to which matching funds call for careful attention to spending: “I don’t want to raise money and give my opponent money. If I can keep the spending down, me as an incumbent, I have a tremendous advantage....If I...