The Big Campaign Finance Story of 2011: An Effective End to Public Financing

By Professor Rick Hasen

It is with great pleasure that I kick off the "11 on '11" series at Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. The series asks us to identify what is likely to be the most significant legal development in our field in 2011. In the field of campaign finance, the big story is likely to be the continued demise in public financing of campaigns, a development caused by both court rulings and legislative inertia.

As early as tomorrow morning, I expect the United States Supreme Court to agree to hear McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law. Under the law, a candidate for state office who agrees to take public financing in lieu of private funds to finance a campaign receives extra public financing when the candidate faces a wealthy opponent who spends large sums in the election or by large independent expenditures against the candidate accepting public financing. As I explained in a June post at the Election Law Blog, I expect the Court to not only take this case, but to reverse the Ninth Circuit and strike down the Arizona public financing system. (To be clear, that's not a result I favor: the Ninth Circuit's opinion in the case, and Judge Kleinfeld's concurrence, offer strong reasons to reach a contrary decision in this case and uphold the Arizona regime).

This development is significant because the Court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

If the Court strikes down the Arizona plan, I expect reformers will push for various alternative plans (which have been proposed over the last few years) to provide public financing to candidates, along with a multiplier match (3 or 4:1) for small contributions. (Give a candidate $100? The candidate gets an additional $300 or $400 from the public financing system.) The idea here would be to provide another way that publicly financed candidates to run competitive campaigns without running afoul of the First Amendment (as likely understood by the Court in McComish). Such plans,however, face two major problems. First, it is not clear if they will actually attract such candidates to participate. Will a rational candidate expect that there will be enough money in the system from these multiplier matches to participate, when facing not only wealthy candidates, but independent spending campaigns which can now be funded by unlimited corporate or union funds through super-PACS? (All of this new funding, of course, is thanks to the big campaign finance story of 2010, the Supreme Court's decision in Citizens United.)

Second, it will be a hard sell to enact new public finance laws during these difficult economic times. Arizona passed its current measure via initiative. It would require considerable work and resources to get a new measure before voters and passed.

The lack of public financing will also be a major story in the upcoming 2012 presidential campaign, which will get going in 2011. As I describe in detail in Richard L. Hasen, The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in THE FUNDING OF POLITICAL PARTIES (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge, forthcoming March 2011) (draft available), no serious candidate in the 2012 presidential campaign will be able to afford to take public financing: the U.S. system for publicly financing presidential elections simply has not kept up with the ability of non-participating candidates to raise funds privately. Though President Obama pledged to fix the public financing system, he's never come forward with a plan to do so, and even if he did, such a plan would have virtually no chance getting out of the Republican House or past a Senate filibuster.

Public financing will still exist in 2011 and beyond, but expect fewer participants and less of an impact of such systems going forward.