SCOTUS Leads Attack on Public Funding of Elections

Davis v. Federal Election Commission, the recent United States Supreme Court case striking down the federal "Millionaire's Amendment" to the McCain-Feingold Act (the Bipartisan Campaign Finance Reform Act of 2003 or "BCRA"), illustrates the hostility of the current SCOTUS to campaign finance regulation--but it also throws in reasoning which could invalidate the public financing systems of several states (Maine and Arizona) and the City of Portland’s Voter Owned Elections.

The Millionaire’s Amendment raised the campaign contribution limits applicable to a federal candidate whose opponent self-financed in excess of a particular amount. The idea was to "level the playing field" when someone faced a wealthy opponent. SCOTUS found that allowing the outspent publicly funded candidate to raise more money places an unconstitutional burden on the self-financing millionaire candidate's exercise of her First Amendment right to spend her own money to communicate on behalf of her campaign. How or why more speech harms anyone is not clear, but the state systems in ME and AZ, North Carolina for judicial elections; New Mexico for the Public Regulation Commission, and Portland’s Voter Owned elections all have a level-the-playing field provision, much like the Millionaire’s Amendment, and are now possibly unconstitutional.

The additional money is necessary so that a candidate who has voluntarily opted for public funds does not become easy prey for outspending by wealthy opponents or well-funded "independent" groups.

In Portland, for example, there are additional amounts available under some scenarios. If a participating mayoral candidate faces a non-participating candidate in the general election who raises $500,000, the participating candidate is eligible to request an additional $250,000 over his or her initial voter owned election allocation of $250,000. If the non-participating candidate raises $800,000 a total of $500,000 in matching funds can be requested.

But if shifting or asymmetrical campaign contribution limits such as the now-stricken Millionaire’s Amendment penalize a wealthy candidate's constitutional right to spend her own money, then similar shifting public financing amounts (one side gets more public money depending on how much the non-participating opponent chooses to spend) may also burden the constitutional right of those wealthy candidates to communicate during an election, according to an extension of the SCOTUS logic in the Alito opinion.

The potential impact of a decision in Davsi on public funding of elections was briefed by the various friends of the court (amicae) but J. Alito did not reference those arguments. The Brennan Center for Justice relied upon the lower court's reasoning upholding the leveling of the playing field provision by analogy to the "trigger provisions" for additional public funds in the publicly financed elections in the several states mentioned above. Conservative amicae sought language in the opinion to fuel additional suits.

Prior to the opinion Laura MacCleary in the Nation noted, that “if the Justices employ broad language in striking down the amendment, their decision could jeopardize the basic functioning of most public funding systems, at least as they have been adopted in several states.”

The issue will now work its way through lower courts, maybe even in Portland.