by Nick Dranias and Fergus Cullen
No one particularly likes negative political ads. Having them paid for with tax dollars is worse. But what’s most offensive is when government uses public funds to help some candidates while discouraging others from speaking to voters.
That’s what happens in campaigns for state offices in Arizona, Connecticut, Maine, and six other states with so-called “clean elections” laws. On March 28, the U.S. Supreme Court will hear two free speech cases that test the constitutionality of taxpayer funded political campaigns. Specifically, McComish v Bennett and Arizona Freedom Club PAC v Bennett challenge matching grants provided by Arizona as extra public funding to subsidize political speech for certain candidates.
Building on the court’s Davis and Citizens United decisions, we believe such matching grants violate the First Amendment rights of privately funded candidates and their supporters. More broadly, we question whether states have any compelling interest in leveling the playing field among candidates by using public funds to ensure they have equal resources. “Leveling” a playing field in this way usual means changing its existing contour for or against certain candidates.
In 2008, Arizona state Rep. John McComish financed his campaign in the traditional way, by raising money from supporters. His three primary opponents participated in Arizona’s Citizens Clean Elections program. Each of McComish’s opponents received a public grant of $19,382 for their campaigns in exchange for agreeing not to spend more. The participating candidates were also eligible for additional matching grants of up to two times the initial grant if the privately funded McComish spent beyond the government-determined limit.
McComish started out with less money than the combined resources of his opponents, and for every dollar McComish spent over the threshold, three dollars of public money was deployed against him because of the multiplier effect. Any McComish supporters who made donations to his campaign triggered three times as much hostile speech against their preferred candidate. And, Arizona’s law counted any independent expenditures made by other groups for McComish or against his opponents as though they were made by McComish himself, also triggering triple public matching funds for his rivals.
What’s level about that playing field? Government uses taxpayer money to help the participating candidates while placing burdens on privately funded candidates and their supporters. “The government shouldn’t be deciding who is speaking too much and who is speaking too little,” says William R. Maurer of the Institute for Justice, which is among the groups challenging the law.
Going back to Buckley v Valeo, the court has sanctioned the use of public campaign funding as one means of curbing political corruption. But “clean elections” laws go too far, seeing the taint of special interest and implied graft in every gesture of support for a candidate. It seems beyond the imagination of advocates of taxpayer financed campaigns that some people contribute their time or money to candidates simply because they agree on the issues and want to help, or that one candidate might raise more money because she’s a better and more appealing choice for voters.
“Clean elections” schemes also introduce excessive government interference in campaigns. Bureaucrats apply formulas to determine precisely the “right” amount of money that should be spent on a campaign. Arizona’s law details how candidates should account for the value of riding to a campaign event in a supporter’s car. Connecticut’s 49-person campaign regulatory agency reviews the legality of one candidate’s website linking to another’s; whether a person who puts a lawn sign on her business’s property makes an illegal corporate contribution; and the value of that sign if a candidate recycled it from a previous campaign.
“Clean elections” laws fail to achieve their other stated goals of increasing competition and participation, reducing the amount of money spent on campaigns, or elevating their tone. It should come as no surprise that Connecticut’s election law written by incumbents has not made incumbents more vulnerable to defeat, though it does relieve office holders of most of the time consuming and distasteful work of political fundraising. Rather, these Incumbent Protection Acts reduce the likelihood of a challenger out-spending an incumbent, making it harder for new candidates to overcome incumbent advantages in name recognition and existing relationships.
These laws also create incentives for gaming the system. In Arizona, straw candidacies and team tactics have been abused to trigger additional funds for favored players. Interest groups run unhelpful ads purporting to support a candidate for doing something unpopular so more money will go to the candidate they really want to help. In Connecticut, candidates in districts dominated by one party who used to spend small amounts to get elected now find themselves awash in public funds they don’t need, but find a way to spend.
In Davis and Citizens United, the court took important steps to re-establish political free speech rights. On March 28, the court has the opportunity to limit the government’s ability to select election winners and losers, leaving such decisions to the voters, where they belong.
Nick Dranias, director of constitutional studies at the Goldwater Institute in Arizona, is a lead attorney in these cases. Fergus Cullen is Executive Director of the Yankee Institute for Public Policy, which joined the suit on an amicus basis.