Supporters of Proposition 15 – the “California Fair Elections Act, which would create a pilot program for public campaign finance in the 2014 and 2018 elections for Secretary of State – are applauding a 9th U.S. Circuit Court of Appeals decision issued Friday to uphold Arizona’s similar law.
Arizona’s law was challenged by six past and future candidates for Arizona political office who have, or plan to, run privately-financed campaigns, as well by as two political action committees who fund such candidates. They said the law’s matching-funds provision – which says a candidate opting for the public-financing system and receiving an initial grant and then would get more money from the state to match what an opponent outside the system spends – violates their First Amendment right to political speech by punishing them for making, receiving or spending campaign contributions above the threshold that triggers the matching funds. They also claimed that because the Act treats candidates differently based on whether or not they participate in the public financing scheme, it denies them the equal protection of the law under the 14th Amendment.
A lower court had ruled for the plaintiffs on their First Amendment claim, so it never reached the 14th Amendment claim. A three-judge panel ruled unanimously Friday to overturn the lower court’s decision and reject the First Amendment claim, and sent the 14th Amendment Claim back to the lower court for adjudication.
“Based on the record before us, we conclude that any burden the Act imposes on Plaintiffs’ speech is indirect or minimal,” Circuit Judge A. Wallace Tashima wrote for the panel, which also included circuit judges Andrew Kleinfeld and Sidney Thomas. No Plaintiff … has pointed to any specific instance in which she or he has declined a contribution or failed to make an expenditure for fear of triggering matching funds. The record as a whole contradicts many of Plaintiffs’ unsupported assertions that their speech has been chilled.”
“Plaintiffs bemoan that matching funds deny them a competitive advantage in elections. The essence of this claim is not that they have been silenced, but that the speech of their opponents has been enabled,” Tashima wrote. “We agree with the First Circuit that the First Amendment includes ‘no right to speak free from response — the purpose of the First Amendment is to secure the widest possible dissemination of information from diverse and antagonistic sources.’ ”
“The 9th Circuit Court of Appeals correctly held that the matching funds provision of the Clean Elections Act does not violate the First Amendment,” Grant Davis-Denny, a California Common Cause board member on the legal team that defended the Arizona law, said today in a news release. “In fact, matching funds actually promote speech while also reducing the potential for large private contributions to corrupt elected officials.”
Thomas Hiltachk, attorney for Proposition 15’s opponents, issued a statement today saying the ruling “was limited to a narrow free speech issue raised by Arizona’s law.”
“StopProp15.com has never argued that public campaign financing violates constitutional protections of free speech. While this is an important issue, it is one that will ultimately be resolved by the U.S. Supreme Court,” he said. “The issues that are important to voters in California are jobs, taxes and moving our state’s economy forward. By inviting legislators to finance their own campaigns with General Fund dollars, Proposition 15 would add more pressure to a state budget that is over-extended by $19 billion. Voters must decide if giving tax dollars to politicians for their campaigns is a higher priority than vital services such as education, public safety, healthcare and transportation.”
But that’s not an entirely accurate assessment of how the public campaign financing would be paid for under Prop. 15; more on that after the jump…
Prop. 15 authorizes raising the registration fees that lobbyists pay, from $12.50 per year to $350 per year, to pay for public financing in the 2014 and 2018 elections Secretary of State – it does not raise anyone else’s taxes, and the measure’s opponents were ordered by a court to amend their ballot arguments to reflect that.
The measure’s text provides that a special, dedicated “Fair Elections Fund” would be created in the State Treasury to hold the increased lobbyist fees for use in this program. Other money to be deposited there would include the candidates’ qualifying contributions, collected in $5 increments from a certain number of supporters; unspent funds from candidates who drop out; donations; interest; “(O)ther funds appropriated by the Legislature; and (A)ny other sources of revenue from the General Fund or from other sources as determined by the Legislature.” It’s those last two upon which Prop. 15’s foes seize to claim all California taxpayers will be footing the bill for election campaigns sooner or later. The measure also says, however that if the commission controlling the fund “determines that there are insufficient funds in the program to fund adequately all candidates eligible for Fair Elections funds, the commission shall reduce the grants proportionately to all eligible candidates,” implying there’ll be no cost overruns.
The fact is, the Secretary of State’s race is cheap – the two major-party candidates in 2006 spent a combined total of about $4.14 million, far less than the $6 million that the lobbyist fee hike would be estimated to raise for each of the 2014 and 2018 votes. So, cost overruns here seem unlikely – but if California ever wants to expand this system to other statewide offices, it would have to find some other revenue source to pay for it. Such an expansion couldn’t happen, however, without additional laws passed to enable it.