Can Publicly Financed Elections Survive Without Punishing Free Speech? - Release: 11-29-2010
Can Publicly Financed Elections Survive Without Punishing Free Speech?
WEB RELEASE: November 29, 2010
John Kramer (703) 682-9320
Arlington, Va.—Today, the U.S. Supreme Court agreed to hear the Institute for Justice's challenge to Arizona's "Clean Elections" Act. According to Professor Rick Hasen, a prominent proponent of publicly financed elections and publisher of a widely read and highly respected blog on election law, the Court's decision to hear the case spells doom for taxpayer financing of campaigns. ("An Effective End to Public Financing" by Rick Hasen, http://summaryjudgments.lls.edu/2010/11/it-is-with-great-pleasure.html.) The reason, according to Hasen, is that the Court is likely to strike down the "matching funds" provision of the system, under which the state provides additional funds to participating candidates when non-participating opponents and even independent groups spend money on speech that opposes them.
As Professor Hasen puts it, rational politicians "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."
Professor Hasen raises an important point, but if he is right, this is a reason to oppose public financing, not to lament the fact that matching funds violate the First Amendment.
According to Bill Maurer, the lead attorney in the Institute for Justice's challenge, "If Professor Hasen is right that public financing schemes like Arizona's are ineffective without matching funds provisions that effectively punish other candidates and independent groups for speaking, then public financing should be abandoned entirely. We shouldn't violate the First Amendment in order to give the government more leeway to hand out money to politicians."
Unfortunately, many groups that favor campaign finance laws are prepared to trade First Amendment rights in order to achieve alleged benefits that have not materialized after more than three decades of modern campaign finance laws. But as University of Rochester political scientist David Primo points out, "The proponents' claim that public financing reduces the threat of corruption and the appearance of corruption is simply unsupported by the evidence. In a recent survey conducted by the nonpartisan Government Accountability Office, for instance, only 20 percent of Maine voters aware of their state's Clean Elections laws said the laws increased their confidence in government, while 15 percent said the laws decreased their confidence in government. The comparable figures in Arizona were 26 percent and 22 percent. This is consistent with my research finding that citizens in states with public funding programs were less likely to believe that officials care what people like them think and less likely to believe that they had a say in what government does."
Dr. Primo reviewed the research on public funding programs and found that they have delivered few, if any, of their promoters' promises. His research brief is available at http://www.ij.org/about/3466.
Maurer concluded, "Arizona's system provides the worst of both worlds—it suppresses speech while failing to achieve anything desirable. If the only way public financing can survive is by relying on the government to suppress the speech of those who don't take taxpayer dollars, then it deserves a swift demise."