Anderson v. Spear

A little over one month after the Supreme Court’s landmark campaign finance decision in McConnell v. FEC, the United States Court of Appeals for the Sixth Circuit issued an opinion that seemed to ignore McConnell’s teachings in striking down many provisions of Kentucky election and campaign finance law. Among the panel’s troubling rulings were the following:

• Striking down a $50,000 limit on the amount gubernatorial candidates can “lend” to their campaign committees and a ban on soliciting contributions after the election is over. Under the panel’s decision, the governor-elect can accept from state contractors money that effectively goes straight into his own pocket (as a “repayment” of the loan to his campaign committee).

• Holding that the state’s public financing system cannot count a candidate’s expenditure of his own money toward the “trigger” amount in the public funding scheme. Candidates who accept public funding must adhere to a spending limit, but if a nonparticipating candidate exceeds that voluntary limit (the “trigger “ amount), participating candidates are permitted to exceed the limit and can receive additional matching funds. “Trigger” provisions are necessary to assure candidates participating in public funding systems that they are not unilaterally disarming by entering the system.

• Finding unconstitutional Kentucky’s requirement that campaign contributions be made in a traceable form, such as by check, rather than by cash.

• Abolishing the 500-foot buffer zone around polling places in which electioneering is prohibited, making it difficult to check Kentucky’s ongoing vote-buying problems.

• Resurrecting the express advocacy/issue advocacy distinction that McConnell had declared “functionally meaningless,” holding that even within the permissible 50-foot buffer around polling places, only communications that explicitly exhort voters to vote for or against a candidate can be prohibited. If this ruling stands, vote buyers will be able to stand as close to the polling place as they want so long as they carry a sign containing “issue advocacy.”

Considering how radical the panel opinion is in rejecting the holdings of other state and federal courts (including two prior Sixth Circuit panels), it would be unfortunate if it gained any credibility as the ifrst federal appellate opinion on campaign finance law after McConnell. The Brennan Center for Justice, Common Cause of Kentucky and the National Voting Rights Institute filed an amicus brief in support of Kentucky’s request for the United States Supreme Court to review the case. Arguing against the Circuit Court’s above rulings, amici explained the following concerns:

• There is a possibility that the same “functionally meaningless” distinction will be the default construction for any election-related law challenged as vague or overbroad;

• Without triggers, public finance systems can collapse; and

• Without a cap on the amount gubernatorial candidates can “lend” to their campaign committees as well as a ban on soliciting contributions after an election, there is a high risk of bribery and a public perception of corruption.

Unfortunately, in November 2004, the Supreme Court declined to hear the case.

The State’s Petition for Rehearing can be found here.