Last evening, the New York Public Financing Commission released the final version of its recommendations for a state-level public financing program. These recommendations will become law unless changed by legislation before December 22.
Lawrence Norden, director of Election Reform at the Brennan Center for Justice at NYU Law, said:
“The plan has a design flaw that could doom the public financing program that was the commission’s purpose. The commissioners neglected to include a severability clause in their recommendations, which will become law unless the legislature intercedes. That omission is irresponsible at best. A severability clause protects a law from being struck down as a whole in a court challenge to one of its parts.
“This invites the justices who brought us Citizens United to set political reform in the United States back even further. They could seize on a trivial challenge to the law that comes out of the commission’s recommendations and blow up the entire program.
“Bringing public financing to New York State is an accomplishment many years in the making. It has overwhelming public support. But now this historical achievement could potentially be obliterated by a successful court challenge on a technicality.
“The omission of the severability clause is all the more glaring because all previous public financing bills in New York have contained such a clause, including the most recent proposals by Governor Andrew Cuomo, Senate Majority Leader Andrea Stewart-Cousins, and Assembly Speaker Carl Heastie. It’s a standard insurance provision for campaign finance laws in an era of conservative courts ready to slash common-sense democracy reforms.
“Some commission members showed a desire to target a minor political party by imposing ballot access regulations unnecessary to public financing. In the end, the commission did take aim at that party, but they hit the core of their public financing program.
“The legislature must intervene and correct the recommendations’ potentially fatal flaw. New York State wants and needs a public financing program to curb the undue influence of wealth in state politics. Albany shouldn’t just stand by and watch it self-destruct.”