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Memorandum on the Constitutionality of the Fair Election Now Act

Democracy Program Director Susan Liss and Senior Counsel Monica Youn have sent the Committee on House Administration a memorandum on the constitutionality of the Fair Election Now Act.

  • Susan M. Liss
  • Monica Youn
Published: September 22, 2010

Memorandum on the constitutionality of the Fair Election Now Act authored by Democracy Program Director Susan Liss and Senior Counsel Monica Youn, and sent to the Committee on House Administration. 

Download memorandum [pdf]


Recent developments in the Supreme Court’s campaign finance jurisprudence, such as its radical Citizens United v. FEC decision, have grabbed national headlines, and lawsuits that challenge campaign finance laws on First Amendment grounds are being filed at an ever-increasing pace. Despite this fast-changing legal landscape, HR 1826/HR 6116, the Fair Election Now Act (“Fair Elections”), which would provide public financing to congressional candidates, occupies a constitutional safe harbor.1 Indeed, voluntary public financing systems have long been held to enhance, rather than burden, the exercise of First Amendment freedoms, and as recently as 2008, the Roberts Court reaffirmed the longstanding rule from the 1976 decision Buckley v. Valeo that voluntary public financing systems are constitutional.

As this memorandum will explain in further detail, the Fair Elections bill is not vulnerable to constitutional attack under current U.S. Supreme Court and circuit court precedents. The Fair Elections bill is drafted to sidestep the two most contentious issues in the realm of public financing litigation: (1) trigger provisions and (2) differential treatment of major and minor parties. By avoiding these issues, Fair Elections has chosen a constitutional design that avoids the provisions at issue in recent challenges and that falls squarely within the four corners of Buckley v. Valeo’s endorsement of public financing.

Public Financing Systems such as Fair Elections Are Constitutional

Fair Elections, like other voluntary public financing system, is on solid constitutional footing. Voluntary public financing programs have been consistently upheld – and praised – by the United States Supreme Court and federal courts of appeals. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (upholding the presidential public financing system under Federal Election Campaign Act (“FECA”)); Green Party of Conn. v. Garfield, No. 09–3941-cv, 2010 WL 2737153 (2d Cir. July 13, 2010) (upholding majority of Connecticut’s Clean Election Program); McComish v. Bennett, 605 F.3d 720 (9th Cir. 2010) (upholding Arizona’s Clean Elections Act);2 Duke v. Leake, 524 F.3d 427 (4th Cir. 2008) (upholding North Carolina’s judicial public financing system); Daggett v. Comm’n on Governmental Ethics & Election Practices, 205 F.3d 445 (1st Cir. 2000) (upholding Maine’s Clean Election Act); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996) (upholding Minnesota’s public funding program); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 1993) (upholding Rhode Island’s public financing law). These programs have been politically popular as well. Indeed, during the 2010 election cycle, public financing will be available for candidates in North Carolina, New Mexico, Florida, Minnesota, Connecticut, Maine and Arizona, among others.

Public Financing Systems Such as Fair Elections Enhance the Exercise of First Amendment Freedoms

In a 30-year line of cases, federal courts – including the Supreme Court – have consistently reaffirmed that public financing systems are a First Amendment boon, not a First Amendment burden. Buckley v. Valeo was the first Supreme Court case to review the constitutionality of public financing. In upholding the constitutionality of the presidential public financing system, the Buckley Court explained that a public funding system aims, “not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Id. at 92–93. The Court further noted that:

the central purpose of the Speech and Press Clauses was to assure a society in which “uninhibited, robust, and wide-open” public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish. Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech.

Id. at 93 n.127 (citations omitted); see also Citizens United, 130 S.Ct. 876, 911 (2010) (“it is our law and our tradition that more speech, not less, is the governing rule.”).

Public financing promotes “uninhibited, robust, and wide-open public debate” not only through direct subsidies for speech but also through more indirect means. Instead of relying on the deep pockets of special interests, public financing makes it possible for candidates to run a viable, competitive campaign through grassroots outreach alone, leaving them indebted to no one but their constituents. In this way, a public financing system serves key anti-corruption interests, combating “both the actual corruption threatened by large financial contributions and the erosion of public confidence in the electoral process through the appearance of corruption.” McConnell v. FEC, 540 U.S. 93, 136 (2003) (internal quotation omitted). Moreover, “[b ]ecause the electoral process is the very ‘means through which a free society democratically translates political speech into concrete governmental action,’ . . . measures aimed at protecting the integrity of the process . . . tangibly benefit public participation in political debate.” Id. at 137 (quoting Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 401 (2000) (Breyer, J., concurring)).

The Supreme Court under Chief Justice John Roberts has reinforced Buckley’s support of voluntary public financing systems. In 2008, the Court reaffirmed that “Congress ‘may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations…’” Davis v. FEC, 128 S.Ct. 2759, 2772 (2008) (quoting Buckley); see also Randall v. Sorrell, 548 U.S. 230, 245 (2006) (“‘[P]ublic financing’ was designed in part to relieve Presidential candidates ‘from the rigors of soliciting private contributions’”) (internal citations omitted).
Fair Elections, like the presidential public financing program and those in several states, furthers First Amendment values by directly enlarging public discussion, preventing corruption and its appearance, providing candidates an alternative to special interest money, and encouraging candidates to reach out to a broader grassroots network of constituents.

Fair Elections Avoids Challenges to “Trigger” Provisions Based on Davis v. FEC

By staying within the four corners of Buckley, Fair Elections occupies a constitutional “safe harbor,” which is not threatened by recent challenges brought against other, differently structured public financing systems. Despite the generally favorable precedent underlying voluntary public financing, and the embrace of public financing by candidates across the political spectrum, certain public funding programs have been targeted by litigious plaintiffs. These systems have been challenged on two constitutional grounds, whether the program (1) chills free speech rights under the First Amendment or (2) implicates equal protection rights under the Fourteenth Amendment. Such challenges have been largely unsuccessful. But, two appellate courts recently struck down provisions which awarded supplemental trigger funds to participating candidates in Florida’s and Connecticut’s public financing systems.3 As explained below, however, Fair Elections does not contain any of those features that have been the subject of recent lawsuits. Instead, Fair Elections was carefully crafted to avoid such challenges.

Fair Elections avoids one of the most hotly disputed questions in current campaign finance jurisprudence: the constitutionality of trigger funds. Trigger funds, which are also known as “rescue funds” or “fair fight funds,” are additional public grants made available to a publicly-funded candidate facing high spending from either a privately-funded opponent or from an independent spender. Extra public money is “triggered” by an opponent or an independent spender spending above a set monetary threshold.

Buckley did not address the constitutionality of trigger funds because FECA’s presidential public financing system does not contain this type of funding mechanism. For years, the federal courts held trigger funds to be presumptively constitutional. See, e.g., Leake, 524 F.3d at 437–38; Daggett, 205 F.3d at 464–65. The one outlier before 2008 was an Eighth Circuit decision, Day v. Holahan, which struck down a trigger provision providing additional public monies in response to independent expenditures. 34 F.3d 1356, 1359–60 (8th Cir. 1994). But, the Eighth Circuit itself abandoned the reasoning of Day in a later case. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1551–2 (8th Cir. 1996); see also Leake, 524 F.3d at 438 (“the Day decision appears to be an anomaly even within the Eighth Circuit, as demonstrated by that court’s later decision in Rosenstiel”); Daggett, 205 F.3d at 464 n.25 (noting that the “continuing vitality of Day is open to question”).

Day’s previously disfavored approach has been revived by a lone citation in the Supreme Court’s 2008 decision in Davis v. FEC.4 In Davis, the Court struck down the “Millionaires’ Amendment” to the Bipartisan Campaign Reform Act, a law that raised a candidate’s contribution limits when the candidate’s opponent spent her personal funds over a threshold amount. Thus, under the “Millionaires’ Amendment,” one candidate could potentially be subject to contribution limits that were three times lower than the limits governing her opponent in the same privately-funded, congressional race. The Davis Court held that this asymmetrical system “chilled” the speech of the self-financed candidate. Plaintiffs challenging trigger funds across the county have claimed that the grant of additional trigger funds to publicly financed candidates created an analogous “chill” on the spending of privately funded opponents and third parties.

Since Davis, circuit courts faced with challenges to trigger provisions in public financing systems have reached different conclusions in determining whether the type of injury found in the Davis case can arise in public financing systems. Recently, the Second Circuit, Green Party, 2010 WL 2737153 at *25–28, and the Eleventh Circuit, Scott, 2010 WL 2977614, extended the Davis rationale in order to strike down such provisions.5 But the Ninth Circuit found Davis to be inapplicable in the public financing context and upheld these provisions. McComish, 605 F.3d at 731 (“Davis says nothing about public ‘funding schemes and therefore says nothing about their constitutionality’” (quoting The Supreme Court, 2007 Term – Leading Cases, 122 Harv. L. Rev. 375, 385 (2008)). And, just after Davis was decided in 2008, the Fourth Circuit upheld the constitutionality of North Carolina’s judicial public financing system, which included triggers. See Leake, 524 F.3d at 437 (4th Cir. 2008), cert. denied Duke v. Leake, 129 S.Ct. 490 (Nov. 3, 2008).

Shortly after the Ninth Circuit’s decision in McComish, the Supreme Court issued a stay pending filing of a petition for certiorari, thereby enjoining the triggered supplemental funds in Arizona’s public financing program. This order has no precedential force and is not binding upon any other public funding system. See Barefoot v. Estelle, 463 U.S. 880, 907 n.5 (1983) (Marshall, J. dissenting) (“Denials of certiorari never have precedential value … and the denial of a stay can have no precedential value either ….”); see also Hopfmann v. Connolly, 471 U.S. 459, 461 (1985) (explaining that denial of certiorari petition has no precedential effect); Schwab v. Secretary, Dept. of Corrections, 507 F.3d 1297, 1298–1299 (11th Cir. 2007) (explaining that grant of certiorari petition has no precedential effect and suggests no view on merits of underlying case).7 But, many speculate that the Court will grant the McComish plaintiffs’ recently-filed petition for certiorari and consider the constitutionality of trigger funds in its upcoming term.

Importantly, regardless of how the trigger funds issue is ultimately decided by the Supreme Court or other courts, Fair Elections will remain on sound constitutional footing. Fair Elections does not have any trigger provisions. Instead, participating candidates retain the ability to gather small private contributions throughout the election cycle; thus, they can respond to a high-spending opponent or hostile independent expenditures at any point by simply raising more small donations from their constituents. Moreover, even in the states which have halted the use of trigger funds have nonetheless allowed the underlying public financing systems to flourish and provide much needed public dollars to candidates who voluntarily participate in these systems.

Fair Elections’ Equal Treatment of Major and Minor Parties

By treating all candidates equally, regardless of party affiliation, Fair Elections also avoids a recent, unsuccessful challenge based on the Equal Protection Clause. In 2009, a federal district court in Connecticut enjoined that state’s public financing system, in part, because the Connecticut system imposed different qualification requirements on major and minor party candidates, requiring an additional showing of electoral support from minor party and independent candidates before they were given the same public funding of major party candidates. The district court held that Connecticut’s differential treatment of major and minor party candidates violated the Fourteenth Amendment’s guarantee of equal protection. The district court’s decision has since been overturned by the Second Circuit, which rejected completely the argument that Connecticut’s system unlawfully discriminated against non-major party candidates. See Green Party of Connecticut, 2010 WL 2737153 at *23. While the Second Circuit’s ruling may be appealed to the Supreme Court, the ultimate outcome will also have no bearing on Fair Elections – since the proposed congressional public funding program makes no distinction between candidates from major and non-major parties.

Citizens United Does Not Bear on the Constitutionality of Fair Elections

Although the Citizens United case cast a national spotlight on the Supreme Court’s suspicion of limitations on campaign spending, nothing in the sweeping decision has any application to voluntary public financing systems such as Fair Elections. Finally, the case of Citizens United v. FEC, recently decided by Supreme Court, does not impact the constitutionality of public financing systems. Citizens United declared that corporations and unions have the same First Amendment rights to spend money on elections as a human being. Specifically, this case grants unions and corporations the right to spend treasury funds on certain political advertisements such as independent expenditures and electioneering communications. But Citizens United is silent on the issue of public financing and casts no doubt upon the constitutionality of Fair Elections.

The public financing system for congressional elections created by Fair Elections was carefully structured to maximize its ability to survive judicial scrutiny. Like all public financing systems, it enhances First Amendment values and does so while providing access to public funding to candidates of all stripes. For these reasons, the Brennan Center urges Congress to move quickly to pass Fair Elections so that congressional candidates can rely on their constituencies rather than on well-funded special interests for their political survival.