Supreme Court Accepts Challenge to Arizona Public Financing Law: Statement of The Campaign Legal Center & Democracy 21

CLC Staff
Nov 29, 2010
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While it is potentially problematic any time the activist Roberts Court takes on a campaign finance case, the issues before the Court in the Arizona public financing case (McComish v Bennett) are narrow.

The Supreme Court’s decision to grant certiorari in the McComish case puts at issue the constitutionality of the payment of so-called “trigger” funds, which is a feature of some public financing schemes, such as the one used in Arizona.  Under trigger fund systems, candidates who decide to accept public financing receive public funds to pay for their campaigns and are subject to spending limits.  If such a candidate faces a candidate who declines public funds and who then spends more than the spending limit, the opt-in candidate receives additional public funds which are “triggered” by the opponent’s excess spending.  It is the constitutionality of that “trigger” funding which is at issue in McComish.  

To be certain, regardless of how the Court ultimately decides the relatively narrow issue before it in McComish, it will not mark the death of public financing.  As noted above, while some states like Arizona have public financing systems that use trigger funds, other states have successfully implemented public financing systems for decades without trigger funds. 

Further, the public financing system used in presidential elections does not contain a trigger funding provision.  Legislation to reform the presidential public financing system and legislation to extend public financing to congressional campaigns also do not contain trigger funding provisions. 

Under these types of public financing systems, opt-in candidates receive either grants or matching funds (or some combination of the two), and are permitted to raise an unlimited number of private contributions, all of which provide the resources necessary to respond effectively to a high-spending opt-out opponent.  Such public financing proposals would not be affected by a ruling in theMcComish case that declares trigger funding systems to be unconstitutional. 

Thus, while the McComish case is obviously important to the handful of states that have already enacted a “trigger” system, it is not relevant to the current public financing proposals being pursued nationally and in a number of states, including the proposals to fix the presidential public financing system and to create a public financing system for congressional races.

On the merits of the trigger provision at issue in McComish, the Court should uphold the Arizona law, because the challenged “trigger” provision merely provides opt-in candidates with additional public funds when they are opposed by high-spending privately-financed candidates and/or independent expenditures.  This increases their ability to speak without imposing any limits on the speech of their opponents. The challenged law places no restrictions on campaign fundraising or spending or speech, and we intend to make these points to the Supreme Court. 

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