The Center for Competitive Politics (CCP) released today a legal analysis finding that rescue funds provisions in publicly-financed election programs are unconstitutional in the wake of the Supreme Court case Davis v. Federal Election Commission.
The analysis focuses specifically on the provisions in New Jersey Assembly Bill 100, "The 2009 New Jersey Fair and Clean Elections Pilot Project Act," which would extend and expand New Jersey’s experiment with taxpayer-financed political campaigns. It confirms the opinion by the New Jersey Office of Legislative Services which also found that "rescue fund" provisions are unconstitutional.
"The Supreme Court found that provisions designed to level the electoral playing field and frustrate candidates’ and individuals’ rights to engage in political speech with no effect on preventing the corruption of candidates or its appearance are unconstitutional," said CCP Vice President Stephen Hoersting "Therefore, the ‘rescue fund’ provisions in A100 would likely be struck down by the courts because they penalize donors to privately funded candidates without preventing corruption and penalize independent speakers for exercising their constitutionally protected rights to speak."
"Some commentators incorrectly assert that the Davis decision has no application to public financing programs. These commentators ignore the fact that public financing programs upheld by the Supreme Court are only constitutional because they are voluntarily accepted by affected speakers and participants," Hoersting continued. "Unlike the rescue funds provisions considered by New Jersey, constitutional public funding schemes do not contain provisions that force outcomes on non-participants."
"The same commentators also fail to acknowledge the Court’s direct citation to the Eighth Circuit case of Day v. Holahan. In Day, the Eight Circuit Court of Appeals reviewed a kind of rescue fund provision of Minnesota law, a statute that increased a candidate’s expenditure limits and eligibility for public funds based on independent expenditures made against her candidacy," Hoersting explained.
"The Eighth Circuit permanently enjoined the enforcement of the provision after finding that ‘[b]y advocating a candidate’s defeat … via an independent expenditure, the individual, committee, or fund working for the candidate’s defeat instead has increased the maximum amount [the candidate] may spend and given [the candidate] the wherewithal to increase that spending-merely by exercising a First Amendment right to make expenditures opposing [the candidate] or supporting her opponent.’"
"A100 clearly imposes on the First Amendment rights of candidates who choose not to participate in the program, independent groups wishing to run ads, and individual citizens considering contributing to a non-participating candidate," Hoersting concluded.
A copy of the analysis is available by following this link: https://www.ifs.org/docLib/20080818_AB_100_memo.pdf
