Campaign finance reformers have spent much of 2010 fighting in the courtroom. Across the nation, campaign finance laws are being challenged in the courts.
Some decisions, like Citizens United, came down from the Supreme Court and affect every election, from the national level on down. But there have also been several court decisions across the country that changed the complexion of local and state primaries and might shape the upcoming November elections. In states as diverse as Kentucky, Washington, and California, federal courts have ruled on spending limits for both individuals and corporations. Some courts have found these limits unconstitutional by following Citizens United; others have upheld the limits, citing interests noted by the Supreme Court in their decision.
There has been another wave of challenges, however, that targets not contributions from outside sources but the “matching” or “trigger” funds provisions of various states, including Arizona, Connecticut, and Florida. In these states, if a candidate spends over a predetermined limit the state may provide public money to the other candidate to “match” that spending. This is not a blank check, however, nor does it go to everyone in every circumstance. To be eligible for the money, a candidate must first participate in the public financing system of the state and their opponent must not. If that opponent exceeds the money limit set by the state, then the matching funds provision is triggered and the state matches dollar for dollar.
Three different federal courts—the Second, Ninth, and Eleventh Circuits—have each ruled on the issue. The Ninth Circuit reversed a district court ruling that Arizona’s matching funds law violated the First Amendment rights of the candidate that did not receive state money. Arizona’s Clean Elections system focuses on money collected as opposed to spent, but if the amount of money collected by a non “Clean Election” candidate exceeds that allocated to their “Clean Election” opponent, the state gives that opponent matching funds.
Although the Ninth Circuit reversed and upheld the matching funds law, the Supreme Court stepped in, issuing a stay and temporarily reinstating the district court decision, blocking the candidates from receiving public funds. The stay was issued as the justices decide whether or not they will grant certiorari. That grant is looking more likely as both the Second and Eleventh Circuits recently ruled that similar programs in Connecticut and Florida were violations of the First Amendment.
But what does this mean for the 2010 elections? In some places, it has already had quite an effect.
The challenge to Florida’s “matching funds” law came from Rick Scott, a Republican candidate for governor. Scott ran as an outsider, funding his campaign largely out of his own pocket. As July came to a close, he was rapidly approaching the $24.9 million cap on spending. He challenged the Florida law, arguing it limited his freedom of speech and therefore violated the First Amendment. Although a district court disagreed with him, the Eleventh Circuit eventually held exactly that and blocked the state from providing Scott’s opponent, current Florida Attorney-General Bill McCullom, any additional funds for his campaign.
Following the ruling, Scott blasted through the cap and spent a record-breaking $50 million on his primary campaign alone. Most of his money was spent on the all-important media campaign, blitzing the airwaves with ad after ad calling into question McCullom’s conservative credentials. McCullom’s campaign floundered towards the end, as he was strapped for cash and couldn’t afford to run as many ads on Florida’s expensive airwaves, particularly not in primetime like Scott could. Scott won the primary and is now the Republican candidate for governor, running against the Democrat Alex Sink.
Was this really a fair and free election? Some would argue yes, seeing it as democracy in action. Our country was founded on liberty and freedom, they would say, including the freedom to express yourself and to spend your money as you see fit. This is what Scott did, in essence. He chose to spend his money on a campaign to promote himself. Whether he spent $50 or $50 million really shouldn’t matter.
There are others, however, who would see this as a corruption of our electoral system and of our democracy itself. We were founded not only on liberty and freedom, they would argue, but on equality. And how is it equality when one candidate plays within the rules of the system and the other does not?
Furthermore, how much of these challenges by deep-pockets candidates has to do with freedom and how much has to do with their own campaigns? In Florida, Scott originally agreed to play by the rules and to stay within the $24.9 million cap. Only when his spending became dangerously close to that number did he question the constitutionality of the law.
This is not only a political matter, however. While in the abstract these laws are about freedom and equality, in the real world these laws are about cold, hard cash. Matching funds laws spend taxpayer money on political campaigns. In some places, the state simply may not have any money to give to these candidates, so it doesn’t affect the budget whatsoever. But in other places, matching funds laws could cost tens of millions of dollars. In a place like Florida, which is facing budget deficits as it is, can the state really afford to spend an additional $25 million simply because the deep-pockets candidate did?
Finally, these challenges are changing the rules in the middle of an election and changing the face of our state and local governments. As Todd Lang, Executive Director of Arizona’s Clean Elections Commission, said, “Changing the rules in the middle would be a disservice to the candidates, the voters and the integrity of the results.”
As the various courts issue their rulings, they may also be helping one candidate over the other. In Florida, the last month of Scott’s campaign—and the last month of McCullom’s campaign, for that matter—would have been markedly different if the cap had remained in place. Did it change the outcome? It’s impossible to say. But it is certain that the Eleventh Circuit’s ruling helped shape the final month of campaigning.
As these challenges work their way up to the Supreme Court, we can only wait and hope that the rules don’t change in the middle of the election again. Changing the rules could change not only who runs but also who wins and who is in charge for the near future. That outcome should depend on the electoral process, not on the question of who gets to spend how much money.
Amanda Lowther is a student at William & Mary School of Law and an editor at Stateofelections.com