Giving Special Funds to Outspent Candidates

The Supreme Court on June 27 overturned a provision of a 1998 Arizona campaign law that sought to "level the playing field" by giving additional public funds to candidates facing privately financed opponents. The 5-to-4 decision overturned offering extra "matching funds" to candidates who agree to accept public funds only but find themselves outspent.

The decision was not a surprise. Three years ago, the court overturned a provision in the federal McCain-Feingold Act that also gave special treatment to candidates running against better-financed opposition. That ruling led to the recent challenge to Arizona's law. It also follows the 2010 Citizens United ruling that struck down limits on the contributions of corporations and labor unions.

Matching-fund provisions similar to Arizona's exist in Maine and North Carolina. They have been passed as well in Minnesota, Connecticut and Florida but have been overturned by courts.

Public Funding Survives

"We do not call into question the wisdom of public financing as a means of funding political candidacy," wrote Chief Justice John Roberts for the majority.  But states cannot offer public funding just to help candidates at the expense of those who rely on private funds. Such a boost, Roberts said, "substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment."

Free Speech Concerns

It is unconstitutional, Robert wrote, "for the government to equalize electoral opportunities in this manner. And such basic intrusion by the government into the heart of the debate over who should govern goes to the heart of First Amendment values. Leveling the playing field can sound like a good thing. But in a democracy, campaigning for office is not a game."

Justice Elena Kagan, dissenting from the majority, said provisions like Arizona's encourage free speech, rather than restrict it. "By providing more resources to many candidates," she wrote, the law "creates more speech and thereby broadens public debate."

Because the ruling "did not strike down public funding per se," says Kenneth A. Gross, a partner in the law firm of Skadden, Arps, Slate, Meagher & Flom, states can still pass public funding laws "but not with the feature that attempts to level the playing field with additional funding for a candidate facing a high-spending opponent or expenditures." But if this Supreme Court "sees any hint of a legislature drafting a law that attempts to level the playing field on campaign spending, it will strike it down."

# # #