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Public Financing Lives

Public financing remains constitutionally sound after the Supreme Court’s decision on the Arizona campaign law. Read a media roundup of the Brennan Center’s response to the decision.

  • Erik Opsal
June 28, 2011

In a 5–4 decision, the Supreme Court yesterday ruled to throw out a provision of Arizona’s public campaign financing system — triggered matching funds — which awarded additional grants to publicly-financed candidates facing high-spending opponents or high-spending outside groups. Unfortunately, this is the latest recent example where the Court has struck down longstanding laws designed to curb the corrupting role of large campaign contributions.

“We regret the Court’s decision” to strike down this provision, says Brennan Center Executive Director Michael Waldman. But after the ruling, one key fact is clear — public financing remains constitutionally sound.

“The Court recognized public funding can 'further significant governmental interest[s], such as the state interest in preventing corruption,'” Waldman continued. “Of note, such systems can exist and thrive without the kinds of triggers in the Arizona law. The presidential system did not have triggers, and proposed federal public financing laws for Congress do not either. In addition, innovative reforms such as New York City’s system, which matches small contributions, can give candidates a chance to compete. This ruling does not undercut the effectiveness of such pro-democracy reforms.”

The case, and the Brennan Center’s response, received considerable media coverage.

Adam Liptak of the New York Times noted the Court’s acknowledgement that public financing is still constitutional.

“We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote. “That is not our business.”

Supporters of the law said the decision could have been worse. “Chief Justice Roberts at least recognized that public financing is a valid constitutional option,” said Monica Youn, a lawyer with the Brennan Center for Justice, which represented one of the defendants in the case.

The Washington Post's Robert Barnes highlighted our argument that the Court is creating “a new set of rights.”

Monica Youn, who heads the money in politics project at New York University’s Brennan Center for Justice, said the court appears to be creating “a new set of rights” that she characterized as “the right to speak without response” and the “right to preserve monetary advantage.”

NPR’s All Things Considered also outlined this view, specifically Justice Elena Kagan’s strong dissent.

After Roberts delivered the ruling Monday, Justice Elena Kagan, an Obama appointee, read a fierce dissent.

Writing for the three more liberal members of the court, she said anyone “familiar with our country’s core values — our devotion to democratic self-governance,” and to a robust political debate, “might expect this court to celebrate, or at least not interfere with” a public financing system.

Kagan’s dissent could open a new chapter in the campaign finance debate, and proponents of campaign finance regulation were cheered by it.

“To the majority, it looks like the mere mention of a leveling interest is enough to doom the law,” said Rick Hasen, a law professor at the University of California, Irvine. “Justice Kagan in her dissent says, 'So what if some of this is motivated to level the playing field? It was also motivated on anti-corruption grounds, and it is justified on anti-corruption grounds.' ”

Still, Kagan is in a four-justice minority on the Roberts court. Monica Youn, who was an attorney for the Brennan Center for Justice on an amicus brief in the case, said, “This is the fifth campaign finance case that the Roberts court has heard, and the fifth that it has struck down, in a mere five years.”

For more coverage of the case and the Brennan Center’s reaction, see articles in the Associated Press, The National Law Journal, McClatchy, and the Huffington Post.

Listen to Brennan Center reaction and analysis to the decision on our media conference call, held yesterday afternoon. Participants included the Brennan Center’s Michael Waldman and Monica Youn, Bradley Phillips of Munger Tolles, and Gerry Hebert and Tara Milloy of the Campaign Legal Center.