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Supreme Court questions Clean Elections funding triggers

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Supreme Court questions Clean Elections funding triggers

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U.S. Supreme Court Chief Justice John Roberts tried his hand at "gotcha" questioning as the high court Monday heard its first lawsuit regarding public financing of political campaigns since the 1970s.

Before coming into the court's chambers Monday morning, Roberts said he visited the website of the Arizona Citizens Clean Elections Committee. 

There, he read that the law being questioned in today's oral arguments in McComish v. Bennett was passed in 1998 by Arizonans to "level the playing field when it comes to running for office"—a rationale that the Supreme Court rejected in 2008 in another campaign finance case called Davis v. Federal Election Commission.

"Why isn't that clear evidence that it's unconstitutional?" Roberts asked William Jay, the assistant to the U.S. Solicitor General, one of the of attorneys defending Arizona's public financing system.

Jay maintained that the state's interests were in preventing corruption, not "leveling the playing field," as did attorney Bradley Phillips, who also argued on behalf of the state of Arizona.

"[The public financing law] works in the sense that there hasn't been a repeat of the public corruption scandals in Arizona," Phillips said at one point during the morning.

But such arguments seemed to face push-back from the bench, which last year ruled in Citizens United v. Federal Election Commission that corporations and unions are free to make independent political expenditures directly from their treasuries.

A question of similarity

Davis v. Federal Election Commission itself was mentioned by name more than two dozen times during the hour-long oral argument, which OpenSecrets Blog attended. Attorney William Maurer, who argued on behalf of the candidates and political committees challenging portions of Arizona's public financing system, in particular evoked it with frequency.

In Davis, the Supreme Court rejected—in a 5-4 ruling written by Justice Samuel Alito—a campaign finance regulation known as the "Millionaires' Amendment." 

This measure was part of the 2002 Bipartisan Campaign Reform Act, also known as "McCain-Feingold" after its chief U.S. Senate sponsors, Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.). It granted candidates who faced wealthy, self-financing opponents an exemption to the normal campaign contribution limits so as to have more cash in their war chests to compete.

Maurer argued the Arizona system, and particularly the trigger mechanisms by which additional "matching funds" are provided to participating candidates, similarly provide asymmetric and discriminatory support to candidates who chose to participate in the public financing system.

"This law replicates and actually exacerbates the harm that was at issue in Davis," Maurer asserted. "This case is determined by Davis."

A privately funded political opponent spending above a certain dollar amount or an outside group making an independent expenditure in opposition to a publicly funded candidate (or in support of his or her opponent) can both trigger additional matching funds in the Arizona system. (The system's advocates also point out that this amount is capped at three times the amount of the initial grant from the state and that candidates and groups are free to raise and spend more than this cap.)

Maurer maintained that these rules— metrics which the system's supporters say save the state money—are deterrents to speaking and engaging in the political process.

"Each time they speak, the more work that they do, the more their opponents benefit," Maurer said.

It takes 5 to tango

A ruling affirming or rejecting Arizona's public financing system needs a simple majority of the justices—five out of nine.

During oral arguments, the Supreme Court's more conservative justices showed particular interest in the independent expenditure trigger—and skepticism about the trigger's constitutionality.

Roberts asked why this trigger wouldn't chill the speech of independent groups who might think twice about investing in political messages because they don't want the candidate they disagree with to receive additional. 

(Phillips, arguing in favor the Arizona public financing system, asserted there was a line between deterrence and chilling of speech. "I might think twice [about making an expenditure]," he said, "but I think thinking twice is not a severe burden.")

Justice Antonin Scalia wondered how this law combatted corruption, unless its purpose was to "suppress" spending. 

Justice Anthony Kennedy said he was inclined to think the regulation was a deterrent. 

And Alito questioned how it was fair for an independent expenditure in favor of a privately financed candidate to trigger additional money for the publicly financed candidate—but that an independent expenditure in favor of a publicly financed candidate didn't trigger additional funds for the privately financed candidate. 

"Why isn't that a clear-cut discrimination based on the content of speech?" Alito asked.

And at another point, Alito accused Jay, of the U.S. Department of Justice, of making an argument in favor of "leveling the playing field" when he mentioned the public financing system being able to provide "the same footing" to candidates. 

Jay, for his part, stressed that equal footing in terms of dollars was true only up to a point and that privately funded candidates were free to out-spend their publicly financed opponents.

Moreover, Justice Clarence Thomas continued his five-year streak of not asking questions during oral arguments. But he has been an opponent of campaign finance regulations in the past.

The court's more liberal bloc of justices—Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer—seemed sympathetic to the state's argument that the triggers provided valuable mechanisms to conserve taxpayer money, but they seem unlikely to win the day.

Breyer, at one point, lamented that the McComish case seemed part of a plan by campaign finance reform opponents for "death by a thousand cuts" for the McCain-Feingold campaign finance regulations.

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