Public Financing Survives

In Citizens United last year, the U.S. Supreme Court stunned the country by overturning the ban on corporations spending money to influence elections. This year, for the first time in three decades, the Court heard a case involving public financing of elections. Campaign finance reformers held their breath and braced for another blow.

On the final day it issued opinions this term, the Supreme Court released another 5–4 decision, this one involving Arizona’s public financing law. Arizona Free Enterprise Club v. Bennett struck down a provision that gave additional funds to publicly funded candidates when they faced high opposition spending.

Although the decision is a blow to efforts to curb the corrupting role of large campaign contributions, it does not sound the death knell for public financing as a whole. For that, reformers can be thankful.

The case only involved one provision of Arizona’s law, but there was reason to fear, and for opponents to hope, that an overreaching Supreme Court would take down all public financing — as various groups supporting the challenge to Arizona’s law expressly requested.

The constitutionality of public financing programs was established in Buckley v. Valeo, the foundational campaign finance case. There, the Court found that providing public financing served to “facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” The challengers of Arizona’s law disagreed.

Arizona’s law was adopted by referendum after a huge corruption scandal. Candidates who voluntarily participated in the program received an initial grant and agreed to a spending cap. If a publicly financed candidate faced high-spending opposition, though, she would receive more money to respond, up to a maximum amount. Plaintiffs argued that the threat of a response burdened their speech.

Reform opponents argued, further, that public financing as a whole was a failure and that public financing “fundamentally alters the relationship between the governed and the government.” Plaintiffs told the Court at oral argument that “[t]his case is about whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates.”

We’d seen this horror movie before.

Citizens United itself was first heard by the Supreme Court as a narrow challenge. That case could, and many argue should, have been decided on much narrower grounds — whether the ban on corporations running advertisements meant to influence elections should apply to Citizens United’s video on-demand movie. Instead, the Supreme Court chose to strike down the entire ban and allow corporations to spend directly to influence elections. This overreaching was widely decried, and it demonstrated a willingness by the Court to reach beyond the facts of the case in front of them in First Amendment challenges to campaign finance laws.

Fortunately, in the Arizona case, the Court did not repeat Citizens United’s overreaching. In fact, Chief Justice Roberts explicitly wrote that questioning the wisdom of public financing was “not our business.”

After Arizona Free Enterprise Club, public campaign financing remains a vital and constitutional campaign finance reform. It defends our democratic system from the corrupting influence of big money in elections. Representatives can better represent their constituents when they are not beholden to special interests, and they can spend more time getting voters invested in elections when they are not constantly chasing big checks. In her searing dissent, Justice Kagan explained that people support public financing because it serves “to stop corrupt dealing – to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office.”

There are many existing public financing programs that continue to pass constitutional muster, including New York City’s small donor matching system, where small privately raised donations from New York residents are matched by public funds. They are models for reform.

This is surely not the last time that those who prefer a wild-west campaign spending environment — where money talks and big money owns the only amplifiers — will try to derail public financing. But for now, reformers can exhale and continue to implement and strengthen public financing systems around the country. By doing so, they will return voters to the center of our democracy.