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HomeMy WebLinkAboutCOM 0248.010 2008-2010 Christopher J. Yuen P.O. Box 5 Ninole, HI 96773 April 13, 2009 Testimony in Opposition to Res. No. 98-09 Good Morning Chair Yoshimoto and members of the Council: I'm sure that others will be testifying about why the pilot program in comprehensive public campaign financing should go forward, and why this resolution should be rejected. My testimony today will be specifically on the legal issues raised in the resolution about the constitutionality of the fair elections program because of the U.S. Supreme Court case, Davis v. Federal Election Commission. There are two key things to understand about this legal issue. First, at most, it potentially involves only one aspect of the program. Second, Davis does not involve public funding, and a strong case can be made for the constitutionality of the entire program despite Davis. The only aspect of the program which Davis creates a legal question is the use of "equalizing funds" to match a nonparticipating candidate's own money in a campaign. To explain further: in this fair election law, which is patterned after those in a number of other states, such as Arizona and Maine, a candidate who is participating in the system, and who has received the required 200 contributions of $5 each, gets public funding up to a certain limit called the "base amount." But if an opposing candidate, who is not participating in the program, spends more than the base amount, the participating candidate gets additional public funding, to a maximum of double the base amount. The Davis case involved the federal campaign funding law, and something called the "Millionaire's Amendment." It was meant to level the playing field when a wealthy self-financed candidate spent more than $350,000 on his or her own campaign, by tripling the amounts that an opponent could raise from individual private donors, from $2300 per donor to $6900. The Supreme Court decided that this unfairly penalized the wealthy candidate's free speech O right to spend money on his or her own campaign. Comm.j Ref. To: r S Note that the Davis case does not involve public funding. There waseno °+@ APR 1--^-- 2069 public funding. The law in question changed the rules for private contributions. It is true that an Arizona court did extend the concepts in Davis i to invalidate a "fair election" law similar to the one that we have here. But ~ there are five higher-level federal courts that have upheld similar laws from constitutional challenge. There are legal arguments on both sides of this issue and I'm not going to go through the details of the various arguments in this testimony. But I have attached to my testimony copies of an article in the Harvard Law Review that presents the opinion that these kinds of public financing laws are constitutional despite the Davis case, and a copy of a similar analysis from a public interest law group. The Council can be satisfied that there are sound reasons, and respectable authority, for believing that this law is constitutional. So what would happen if an individual challenged the law? The plaintiff would have to be a candidate who had chosen not to participate in the public funding. The case would involve only the equalizing funds that the opponent would get if the plaintiff candidate used his or her own money in excess of the base amount. This law, Act 244, has a "severability" clause, so that even if one portion is found illegal, the remaining law is given effect. Even if a court found that the equalizing funds were unconstitutional, it would only invalidate the equalizing funds that matched the plaintiff candidate's own money, by forbidding the Campaign Spending Commission from giving out those equalizing funds. This whole legal issue, then, concerns a relatively small aspect of the law, which, even if it were invalidated, would not affect the major part of the law-the public funding of the campaign up to the base amount, or equalizing funds that matched contributions that the nonparticipating candidate received from others. Thus, this potential legal issue does not make it necessary to postpone or change the comprehensive campaign financing law. This law, Act 244, deserves the chance to be tried in Hawai'i. 2 2 0 20081 THE SUPREME COURT - LEADING CASES 375 that right.74 These laws should receive heightened scrutiny because of their role in establishing lockups 75 In policing election law, the courts have a duty not only to protect the rights of incumbent party leaders, but also to promote a competi- tive election market. Political primaries can play an enormous role in determining whether an election is truly competitive, as the Court has previously recognized.76 Permitting the party organization to present as the chosen candidate of the party one whose political success has only been gaining the support of that organization, rather than that of the party electorate as a whole, undercuts both the First Amendment rights of the electorate and the state's interest in maintaining fair and competitive elections. Courts should strive to look past the formal di- vide between the public and private spheres that was maintained in Lopez Torres and recognize the functionally public nature of party primaries. E. Freedom of Speech and Expression J. Campaign Finance Regulation. - The Supreme Court's newest member, justice Alito, joined the Court after promising to practice ju- dicial restraint by deciding cases narrowly and avoiding broad and hasty doctrinal changes.' Campaign finance doctrine is one area of law in which he has delivered on that promises Last Term, in Davis v. FEC,' the Supreme Court held that the "Millionaire's Amendment" provision of the Bipartisan Campaign Reform Act (BCRA) unconstitutionally burdened speech through its asymmetrical expenditure limits. In a carefully written opinion, justice Alito rea- soned that the asymmetrical restriction scheme constituted a penalty unsupported by a compelling state interest. Despite Justice Alito's narrow opinion, some commentators have suggested that the logic of 74 See David Schleicher, "Politics As Markets" Reconsidered: Natural Monopolies, Competi- tive Democratic Philosophy and Primary Ballot Access in American Elections, 14 Sol. CT. RCON. RFv.. 03, 2 14-15 (200(i). 75 Issacharoff & Pildes, supra note 7 r, at 670. 76 See United States v. Classic, 3r3 U.S.299, 320 (1941. 1 See, e.g., Confirmation Hearing on the Nomination of Samuel A. Alitc, Jr. 7b Be an Associ- ate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judi- ciary, togas Cong. 343 (202( [hereinafter Aiito Confirmation Hearing] (statement of then-Judge Samuel A, Alim, Jr.). 2 Although this is the first Supreme Court opinion justice Alito has written on campaign fi- nance, justice Alito joined the Chief justice in trimming hack McConnell V. FEC, 540 U.S. 93 (2003), through a narrow as-applied challenge to the Bipartisan Campaign Reform Act in FEC v. Wisconsin Right to L¢Je, 127 S. Ct. 2652 (2007). Along with the Chief justice, justice Alito also provided justice Breyer with a plurality for his opinion in Randall v. Sorrell, tab S. Ct. 2479 (2o06), which employe narrow reasoning in striking down Vermont's extremely low cap on cam- paign expenditures. 3 128 S. Ct. 2759 (2008). 376 HARVARD LAW REVIEW [V01. 122:276 Davis calls into question many states' public financing schemes. Al- though this reading of Davis is plausible, it oversimplifies the Court's reasoning and ignores the long-recognized constitutional distinction be- tween speech restrictions and speech subsidies. The BCRA restricts the size of donations candidates may receive from individuals and the amount parties can spend on coordinated campaign expenditures that support specific candidates.' Although these restrictions typically apply equally to all candidates, the restric- tions are loosened when a candidate's opponent spends above a certain amount of his own money.' The expenditure exceptions of the so- called Millionaire's Amendment kick in when the "opposition personal funds amount" (OPFA) of a candidate's opponent exceeds $350,000.6 The OPFA "is a statistic that compares the expenditure of personal funds by competing candidates and also takes into account to some degree certain other fundraising."' Once a candidate becomes "self- financing" by exceeding the $350,000 OPFA limit, the Millionaire's Amendment authorizes his opponent to receive three times the amount he could normally receive from individuals under the BCRA, including from individuals who have otherwise maxed out their authorized con- tributions, and allows him to receive unlimited coordinated funds from his party." But "[o]nce the non-self-financing candidate's receipts ex- ceed the OPFA, the prior limits are revived."" The Millionaire's Amendment also requires self-financing candidates to announce their intent to self-finance within fifteen days of entering a race, then to an- nounce they have crossed the OPFA threshold within twenty-four hours of doing so, and again to announce within twenty-four hours any expenditure of an additional $io,ooo or more of personal funds. 10 Jack Davis ran for Congress in 2004 and 2006.11 In both races, he ran as the Democratic candidate for New York's 26th congressional district, and in both races he lost to the incumbent Republican Tom Reynolds.12 Davis funded both campaigns primarily from his own pocket, spending $1.2 million in 2004 and $2.3 million in 2006.1' In the 2006 race, the race at issue in Davis, Congressman Reynolds spent 4 Id. at 276,5-66 (citing 2 U,S.C. 4 441a (2oo6p. See id. at 2766. e Id. Id, a Id Id. to Id.at2766-67. 11 Id, at 2767. 12 Brief for Appellant at 4, Davis, 128 S. Ct 2759 (2008) (No. 07-320), avoiiable at littp://www,abanet,org/publiced/preview/briefs/pdfs/07-0 810 7-3 2o-Al)pellantpdf. i3 Davis, 128 S. Ct. at2767. 20081 TILE SUPREME COURT - LEADING CASES 377 no personal funds on his campaign. 14 When Davis decided to run in 2oo6, he declared his intent to exceed the OPFA threshold, and he sub- sequently sued the Federal Election Commission (FEC), asserting that the Millionaire's Amendment was unconstitutional and asking the Dis- trict Court for the District of Columbia to enjoin the FEC from en- forcing it,'s On summary judgment, a three-judge panel of the district court ruled against Davis on his constitutional claim. 16 Davis invoked the BCRA's direct Supreme Court review provision." The Supreme Court reversed.19 In an opinion by justice Alito,lo the Court held that Davis had standing20 and that the Millionaire's Amendment violated the First Amendment .21 Addressing the standing issue first, the Court determined that Davis faced a sufficiently "real, immediate, and direct" prospective injury22 because he was likely to trigger the Millionaire's Amendment at the time he filed Suit. 23 The Court also determined that Davis's suit was not moot because, as in FEC v. Wisconsin Right to Life '24 his case "fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review."25 Then the Court turned to Davis's First Amendment arguments and determined that the Millionaire's Amendment's asymmetrical contri- bution limits", and disclosure requirements27 unconstitutionally bur- dened candidates' speech. The asymmetrical limits, the Court rea- soned, effectively "impose[d] an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right,"28 con- i4 Id. a Id. 1o Id. at 2768. e.7 Id. as Id. 19 Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined Justice Alito. 211 Davis, 128 S. Ct, at 2768. 21 /d.at2775 72 Id. at 2769 (citing Los Angeles v. Lyons, 461 U.S. 95, 1o2 (1983); Babbitt v. Farm Workers, 442 U.S. 289, 298 0979)) 23 See Davis, 128 S. Ct. at 2769. 24 127 S. Ct. 2652 (2007). 25 Davis, 128 S. Ct. at 2769 (quoting Wis. Right to Life., 127 S. Ct at 2662) (internal quotation marks omitted). According to Wisconsin Right to Life, "[t]he exception applies where `(q the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will he subject to the same action again."' 127 S. Ct, at 2662 (quoting Spencer v. Poona, 523 U.S. t, 17 (1998)). In ad- dition, Davis requested that his suit be expedited to conclude before the 2oo6 election, but the dis- trict court denied his request following the FEC's assertion that the case would require extensive discovery. See Davis, 128 S. Ct. at 2768. 26 See Davis, 128 S, Ct. at 2773. See id. at 2774-75 2s Id.at2771. 378 HARVARD LAW REVIEW Ivol. 122:276 trary to Buckley v. Valeo'sZe "emphasis on the fundamental nature of the right to spend personal funds for campaign speech."30 This burden could only be "justified by a compelling state interest,"31 and the EEC's asserted interest - "level[ing] electoral opportunities for candi- dates of different personal wealth" - was not sufficiently compel- ling.32 Nor did the Millionaire's Amendment further the previously recognized compelling state interest "in eliminating corruption or the perception of corruption."33 Having concluded that the asymmetrical contribution limits were unconstitutional, the Court examined the accompanying disclosure re- quirements. For disclosure requirements to satisfy the First Amend- ment, "there must be `a "relevant correlation" or "substantial relation" between the governmental interest and the information required to be disclosed,' and the government interest `must survive exacting scru- tiny."'t4 Therefore, because the Court found the asymmetrical limit scheme unconstitutional, the Millionaire Amendment's disclosure re- quirements could not survive either. Justice Stevens filed a dissent in which he expressed his fundamen- tal disagreement with Buckley's prohibition against expenditure limits and his belief that the Millionaire's Amendment satisfied Buckley'3 He opened the dissent by wholeheartedly agreeing with the district court that "the Millionaire's Amendment does not impose any burden whatsoever on the self-funding candidate's freedom to speak,"36 nor did it violate the "equal protection component of the Fifth Amend- 29 424 U.S. 10 976) (per curiam). 30 Dnvis, 128 S. Ct. at 2771; see also id. at 2772 ("Under § 319(a), the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for op- ponents in the competitive context of electoral politics."). 31 Id. at 2772 (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 256 p986)) (internal quotation marks omitted). 12 Id. at 2773-74 ("The argument that a candidate's speech may be restricted in order to 'level electoral opportunities' has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office.... [I]t is a dan- gerous business for Congress to use the election laws to influence the voters' choices.'); id. at 2774 ("The `[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves."' (alteration in original) (quoting First Nat'l 13 ank of Boston v. B01rati, 4,35 U.S. 765, 791 11 31 (x978))). 'the FEC also asserted an interest in "amelioratfing] the deleterious effects that result from the light limits that federal election law places on individual campaign contributions and coordinated party expenditures" Id. st 2774. The Court rejected this argument as inconsistent with Buckley's distinction between expenditures and contributions. Id. 33 Id.at2773 ,14 Id. at 2775 (quoting Buckley, 424 U.S. at 64 (footnotes omitted)). 35 See id. at 2777-78 (Stevens, J., concurring in part and dissenting in part). Justices Souteq Ginsburg, and Breyer joined Part 11 of justice Stevens's opinion, which argued that the Million- aire's Amendment satisfied Buckley. 36 Id. at2778. 20081 THE SUPREME COURT - LEADING CASES 379 ment."37 Next, he expressed his agreement with Justice White's posi- tion in Buckley that expenditure limits amount to time, place, and manner restrictions that should be upheld "so long as the purposes they serve are legitimate and sufficiently substantial. "3a Accordingly, Justice Stevens presented what he considered to be two legitimate and substantial purposes that justify limiting campaign expenditures: free- ing candidates from the burden of fundraising and improving the ex- change of ideas.19 Based on this logic, justice Stevens concluded that because he saw no constitutional problem with expenditure limits, nit follows a fortiori that the [Millionaire's Amendment] survives constitu- tional scrutiny. "40 Next, Justice Stevens argued that the Millionaire's Amendment "quiets no speech at all,"41 but instead only "[e]nhanc[es] the speech of the millionaire's opponent. "42 Even assuming that the Millionaire's Amendment burdened speech, justice Stevens maintained that the anti-corruption interest identified in Buckley was not the only government interest compelling enough to justify contribution limits .41 He would have accepted the FEC's proffered interests in leveling the spending of candidates and in preventing the appearance that public office can be bought.44 Justice Ginsburg also filed a dissent in which she distanced herself from some portions of justice Stevens's opinion: is In particular, she declined to join Justice Stevens "to the extent that [he] address[ed] Buckley's distinction between expenditure and contribution limits and, correspondingly, Buckley's holding that expenditure limits impose `di- rect quantity restrictions on political communication. 11146 Because the parties had not briefed those issues, she would have "[left] reconsidera- tion of Buckley for a later day and case."47 When he was nominated to the Court, Justice Alito promised he would practice a form of judicial restraint by deciding narrowly only 17 Id. ss Id. (quoting Buckley, 424 U.S. at 264 (White, J, concurring in part and dissenting in part)) (internal quotation marls omitted). 39 See id. at 2779. '0 1 ,1. 41 Irl. at178o. 42 Id. ("If only one candidate can make himself heard, the voter's ability to make an informed choice is impaired. And the self funding candidate's ability to engage meaningfully in the politi- cal process is in no way undermined by this provision." (citations omitted)). , 42 See id. at278--8x. 44 See id, at 278n (`Indeed, we have long recognized the strength of an independent govern- mental interest in reducing both the influence of wealth on the outcomes of elections, and the ap- pearance that wealth alone dictates those results."). 1' See id. It 2782 (Ginsburg, J., concurring in part and dissenting in part). Justice Breyer joined Justice Ginsburg. 46 Id. (quoting Buckley v. Valeo, 424 U.S. n, 18 (1976) (per curiamr). 4r Id et2783. 380 HARVARD LAW REVIEW [VOL 122:276 those issues presented in each case.48 In his three Terms, he has held true to that promise 4q In controversial cases, he has stayed much of the controversy by handling the cases carefully, reasoning only so far as to resolve the issues presented to the Court.50 As a result, justice Alito has set the Court on a more steady and modest path while it slowly re-centers constitutional doctrine. The opinion in Davis v. FEC is one more example of his careful approach to the law, in its sober treatment of the law and facts of the case. Yet some have suggested that Davis's reasoning carries broader implications that draw into question the public financing laws of many states. According to these commentators, the Court's characterization of the BCRA's asymmetri- cal restriction scheme as an unconstitutional burden on self-financing candidates' speech implies that asymmetrical public financing schemes must also unconstitutionally burden speech. This reading of Davis is as ,See, e,g., Auto ConJirmatio n Hearing, supra note i, at 343 (statement of then-Judge Samuel A. Able, Jr.) ("I think that my philosophy of the way I approach issues is to try to make sure that I get right what I decide, and that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be de- cided, and not going to broader grounds for a decision when a narrower ground is available."), p( id. at 56 ("Good judges are always open to the possibility of changing their minds based on the next brief that they read or the next argument that is made by an attorney who is appearing be- fore them or a comment that is made by a colleague during the conference on the case, when the judges privately discuss the case."). As his former colleagues attested, this has been Justice Aldo's philosophy since he sat on the Third Circuit. See, e.g., id. It 657 (statement of Chief Judge An- thony J. Scirica) ("Judge Alito approaches each case with an open mind and determines the proper application of the relevant law to the facts at hand, lie has a (feel) respect for precedent. His rea- soning is scrupulous and meticulous. Ile does not reach out to decide issues that are not pre- sented in the case 'P° See, e.g., Snyder v. Louisiana, 128 S. Ct 1203, 1212 (2008) (Able, J.) ("we have not previ- ously applied [a burden-shifting rule] in a Batson case, and we need not decide here whether that standard governs in this context"); see infra IT 346-55 (describing the narrowness of justice Alito's majority opinion in Snyder). But cf. Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of Constitutional Law, 82 TEL. L. Rev 1533, 1543 (2008) (arguing that "[Chief justice] Roberts and [Justice] Alito seem to be[] driven by nothing more than their own desire to reach results they personally prefer: they do not like abortion, they don't like speech that mocks Jesus, they don't like laws that regulate corporate speech, they don't like affirmative action, and they do like faith-based initiatives," and therefurc "[i]f ever such phrases as 'residt-oriented' and 'ideologically driven' ring true, it is in the conduct of [Chief Justice] Roberts and [Justice] Alito during the icon Term"); Seth Rosenthal, Fair to Meddling: The Myth of the Hands-0j] Contemn- fill Jurist, SLATE, June 27, 2006, http://tvww.slate.com/id121442021 (characterizing justice Alito's jurisprudence as more activist than restrained). so In fact, his minimalist judicial style has often drawn fire from other members of the Court who would prefer to sweep more broadly in establishing doctrine. See, e.g., Hein v. Freedom from Religion Found., Inc., 127 S. Ct. 2553, 2582 (2007) (Scalia, J., concurring in the judgment) ("Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and dis- ingenuous distinctions in the future. The title of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason. Either Flirt was cor- rect, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety,"). 1 20081 THE SUPREME COURT - LEADING CASES 381 understandable, but ultimately incorrect. It oversimplifies and over- broadens the Court's reasoning, and it ignores the critical constitu- tional distinction between government restrictions on speech and gov- ernment subsidies of speech. While the Court may well set its sights on asymmetrical public funding, Davis is hardly the warning shot these commentators think it is. Many state public financing schemes employ an asymmetrical funding schedule similar to the asymmetrical contribution restriction schedule in Davis. In general, these asymmetrical public financing schemes provide additional public funds to candidates whose oppo- nents spend over a certain amount. For example, Maine's Clean Elec- tions Act provides additional public funding to a participating candi- date when his opponent exceeds the participating candidate's public funding revenue and independent expenditures.' Similar schemes ex- ist in other states. s2 Until Davis, these schemes were generally considered constitution- ally permissible. Asymmetrical public financing schemes are generally premised on the same rationale as the Millionaire's Amendment: to level the financial disparity between political candidates. Nebraska's public financing law, for example, provides a participating candidate with funds that equal "the difference between the spending limitation and the highest estimated maximum expenditures filed by any of the candidate's opponents ...."s' When defending its scheme against a First Amendment challenge, North Carolina argued that without its asymmetrical funding scheme, "the risk of being drowned out by a [self-funding] opponent would render participation implausible. "54 Despite these similar purposes, most courts that have consi- dered the asymmetrical public financing schemes have held them constitutional .-5s sl Me. REV. SrnT. ANN. tit. a-A § i ts5(Q) (2co8). 51 For a list and summary of state public financing' laws, see Common Cause, Public Financ- ing in the Stales, hopilwww.commoncause.org/site/pp.asplc=(IkLNIOMQhVG&b=5073QQ (last Visited Oct. S. 2008). 53 Nstt. Rev. STAT. ANN. C 32-1606(1) (LexisNexis Sapp. 2007). '4 Appellees' Answering Brief at 37, N.C. Right to Life Comm. Fund for Indep. Political Ex- peuditules v. Lealee, 524 F.3d 427 (4th Cir. 2008) (No. 07-1454), arsSlnGle et http://brennan.3cdn. ncl/cc364163207o174cc9_j2m6bpspk.pdf. Three circuits have squarely upheld asymmetrical public funding schemes. In Daggett v. Cmm~xissian an Gvvernnwntnt Ethics alai Election Practices, zoS Fad 445 (ist Cir. 2000), the First Circuit rejected a First Amendment challenge to an asymmetrical public financing scheme, characterizing the challenge as "boil[ing] down to it claim of a First Amendment right to outraise and outspend an opponent." Id. at 464. In Gable v. Patton, 142 FA 940 (6th Cir, 1998), the Sixth Circuit upheld an even more questionable public funding scheme that provided two-for-one matching funds to participating candidates and continued to do so even when it lifted the expen- ditm'e limit on participating candidates whose opponents exceeded a certain amount. See id. at 947-49. And, shortly before the Court decided Davis, the Fourth Circuit upheld a public financ- ing scheme that provided matching funds to participating candidates whose opponents exceeded a 382 HARVARD LAW REVIEW tV01. 122:276 In the wake of Davis, however, some commentators have read the Court's broad language to suggest that asymmetrical public funding schemes are unconstitutional. For example, Professor Rick Hasen of the Election Law Blog argued that Davis "calls all [asymmetrical] pro- visions in public financing systems into question. 1156 Similarly, Profes- sor Rick Esenberg at the Shark and Shepherd blog argued that Davis was the day's most important opinion - even more important than the Second Amendment ruling in District of Columbia v. Heller52 - precisely because it potentially signaled that asymmetrical public fund- ing schemes are unconstitutional.58 Professor Esenberg suggested that "if asymmetrical campaign contribution limits burden a candi- date's constitutional right to spend his own money, then asymmetrical public financing [might] burden the constitutional right of persons to communicate on issues of public importance during an election."ie There have also been warnings in the popular press that Davis calls asymmetrical financing schemes into question.1i0 certain limit, See N.C. Right to Life, 52¢ F.3d at ¢38 ("To the extent that the plaintiffs (or those similarly situated) are in fact(leterred by [the asymmetrical public funding scheme] from spending in excess of the trigger amounts, the deterrence results from a strategic, political choice, not from it threat of government censure or prosecution."). Only the Eighth Circuit, in Day v. Holahan, 34 F.3d 1356 (8th Cir lose), has struck down an asymmetrical financing law as unconstitutional. The Minnesota campaign finance late in Day relaxed expenditure limits and provided public funding to a candidate once his opponent spent over a certain amount. See id. at 1359; see also MINN. STAT. t roA.25 subd. 13 (Stipp. 1993). The precise terms of the scheme provided: The expenditure limits in this section are increased by the sure of independent expendi- tures made in opposition to a candidate plus independent expenditures made nn behalf of the candidate's major political party opponents.... Within three days after providing this notice, the hoard shall pay each candidate against whom the independent expendi- tures have been made, if the candidate is eligible to receive a public subsidy and has raised twice the minimum match required, nn additional public rvbndv equal to one-half the independent expenditures. Id. (emphases added). Without distinguishing between the expenditure restriction provision and the public financing provision, the Eighth Circuit held that the law infringed on the plaintiffs' First Amendment rights, Day, 34 F3d at 1360, was content-based, id, at 1361, and failed strict scrutiny, id. at 1361-62. Yet the Eighth Circuit later declined to extend Day's rationale to cover a public financing scheme that required participating candidates to agree to a cap on expenditures but relaxed that cap if a candidate's opponent exceeded it certain expenditure limit. See Rosen- stiel v. Rodriguez, lot EA 1544 (8th Cir. 1996). s6 Posting of Rick Ilasen to Election Law Blog, http//clcctioiilawblog.org/archives/oiro95. lure] (J1me 26, 2008, o7:55) s' 128 S. Ct 2783 (2008). ss Posting of Rick Esenberg to Shark and Shepherd, http://sliarkandsiiepherd:blogsl)ot.com/ 2008/o6/davis-v-fec-days-mast-importanthtml (June 26, 2008, 13:22) ("Heller is it huge case, but, in terms of affecting policies that might actually he enacted, it may not be as important as today's decision in Davis v. Federal Election Coneram,ion."). se Id. 611 See, e.g., Adam Bonin, Opinion, Average Joes Sbuggle To Be Heard as Conpaign System Favors the Rich, PHILA. INQUIRER, Aug. 7, 2008, at At5 ("Because [asymmetrical funding] re. 20081 THE SUPREME COURT - LEADING CASES 383 Although this reading of Davis is plausible, it oversimplifies the Court's reasoning and ignores a crucial First Amendment distinction between government promotion of speech and government restriction of speech. As a result, it overly broadens justice Alito's narrow rea- soning to sweep well beyond the circumstances presented in Davis. Justice Alito did characterize asymmetrical contribution limits as a "burden" on speech .61 But he was careful not to say that any policy measure that arguably gives one candidate more speech power is an unconstitutional burden. Instead, he merely reasoned that restricting a candidate's speech based on his decision to exercise his speech rights is an unconstitutional burden 62 Promoting a candidate's speech based on an opponent's exercise of his speech rights is a different matter. While both kinds of regulation might seek to level the field between candidates, only one does so by affirmatively limiting a candidate's First Amendment right to speak. The Court has long recognized the distinction between government restrictions on speech and government promotion of speech.f3 Al- though the Court's public subsidies jurisprudence has been far from clear '64 one principle is evident: the government can discriminate more when subsidizing speech than when restricting speech.65 Simply stated, because the government is not required to fund all constitu- tional activities, it can choose to fund certain constitutionally protected speech but not other constitutionally protected speech.66 As the Court said in Regan v. Taxation with Representation of Washington '67 "[The Supreme] Court has never held that Congress must grant a bene- fit to a person who wishes to exercise a constitutional right. "68 Be- forms call for government spending to boost the speech of some candidates and not others, how- ever, the Supreme Court decision now calls them into constitutional doubt"), 61 See, e.g., Davis, 128 S. Ct. at 2771 ("[W]e agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech."); id. at 2772 (characterizing the asymmetrical scheme as "a special and potentially significant burden'); id. (calling the asymmetrical scheme a "substantial burden'). At times, the Court even went so far as to call the scheme an "unprecedented penalty." Id at 277r. 62 See id. at 2771 (exphuning that the Court has "never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other" (emphasis added)). 63 See KATHLEEN M. SUtIdVAN & GERALD GUNTHER, FIRST AsTrNDMrNT LAW 326-29 (3d e(l . 2007) (discussing the Court's distinction between "penalties" and "non-subsidies"). 6n SIC id . n326, (3' See, e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S, 569 0998) (holding that the gov- ernment can consider "general standards of decency" when selecting how to award funds); Rust v. Sullivan, Soo U.S. 173 (iggi) (holding that government can condition funding on recipients' agreement not to encourage, advocate, or promote abortion). 66 See Regan v. Taxation with Representation of wash„ 461 U.S. 540 (1983) (upholding law forbidding nonprofits that engage in lobbying from receiving tax-deductible contributions). 67 46r U.S.540 68 111 at 545 384 HARVARD LAW REVIEW Ivol. 122:276 cause this distinction is so firmly established, it is unlikely that a care- ful jurist like justice Alito would sub silentio wipe out subsidies as well as burdens on campaign speech without even a mention of the distinction. The distinction draws a clear doctrinal line between the asymmet- rical restriction scheme in Davis and the asymmetrical funding schemes in many states. Public funding is clearly a government sub- sidy,1,9 whereas contribution limits are clearly government restric- tionS.70 By providing additional funding to non-self-financing candi- dates, non-coercive asymmetrical funding schemes only promote speech; in no way do they directly restrict the self-funding candidate's speech. As a constitutional matter, asymmetrical public campaign funding is little different from denial of tax-deductible status to non- profits that lobby7l or from government refusal to subsidize certain types of art,72 both of which the Supreme Court has upheld. And asymmetrical funding schemes are certainly less constitutionally sus- pect than the content-based restrictions on the use of public funding by organizations that advocate abortion that the Court upheld in Rust v. Sullivan 73 In contrast, asymmetrical contribution limits directly penalize the self-funding candidate's speech by subjecting him to lower contribution limits than his opponent as a result of his exercise of his speech rights. Recognizing this crucial distinction between penalties and subsidies, circuit courts have refused to apply expenditure limit cases when assessing the constitutionality of asymmetrical public fund- ing schemes. 74 There is no reason to think that Justice Alito would obliterate this distinction - especially because Buckley approved of similar public funding schemes.15 G9 Cf id. at 544 ("[T]ax exemptions and tax deductibility are a form of subsidy that is adminis- tered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income.'). Lille tax exemptions and deductibility, public campaign funding has "the same effect as a cash grant," since it allows a can- didate to spend more on expressing and disseminating his campaign message than he otherwise would have been able to spend. 7o See Buckley v. voter, 424 U.S. t, 18 0976) (per atriam) ("[T]he present Act's contri hunch and expenditure limitations impose direct quantity restrictions on political commuuieatiun and association... P). 71 See 7exotiaa wits Representation, Or U, S. 540. 72 .See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998). 73 500 U.S. 173 (1991) 14 See, e.g., Daggett v. Comm'n on Governmental Ethics & Election practices, 205 12.34 445, 464 (1st Ch. 2000) (refusing to apply expenditure limit cases to asymmetrical public financing scheme "because they involve direct monetary restrictions on independent expenditures, which inherently burden such speech, while the [asymmetrical public funding] statute creates no direct restriction."). 's See Buckley, 424 U.S. at 93 ("Thus, [the public funding scheme] furthers, not abridges, per- tinent First Amendment values."). 20081 THE,. SUPREME COURT LEADING CASES 385 Campaign finance is a hotly contested area of constitutional law - many of the Supreme Court's cases on the topic have split along the Court's alleged political lines .76 While some strongly view campaign expenditures as speech, others see them as simple financial transac- tions. And while some view government regulation of campaigns as fundamentally antithetical to democracy, others view it as the only, way to achieve true democracy. Precisely because of this strong split in opinion, it is especially important for the Supreme Court to address campaign finance cases with care and modesty. Justice Alito's opinion in Davis meets this need through its narrow focus on asymmetrical ex- penditure limits. It says nothing of asymmetrical funding schemes and therefore says nothing about their constitutionality. While some might wish to stretch justice Alito's reasoning to serve an anti-public finance agenda, or to sound an alarmist warning to rally public finance law supporters, there is nothing to stretch. This opinion does no more than it purports, and such restraint is a welcome development in Su- preme Court jurisprudence. z. Overbreadth Doctrine. - The Supreme Court has long recog- nized that the existence of laws threatening protected speech can have a chilling effect that unacceptably burdens free expression.' The over- breadth doctrine responds to that concern by allowing any individual to argue that a statute unconstitutionally restricts others' speech., Al- though overbreadth claims are nominally available to both civil liti- gants and criminal defendants on equal terms, they have been almost invariably rejected by the Supreme Court when brought as defenses to prosecution over the last twenty-five years.' Last Term, in United States v. Williams 4 this pattern continued, as the Court avoided a finding of overbreadth that would have stricken Congress's latest ef- fort to deal with online child pornography and instead upheld a con- viction for possessing and pandering sexually explicit pictures of chil- dren as young as five. In doing so, the Court repeatedly chose to follow its less speech-protective overbreadth precedents, even expand- ing one of the categorical exclusions to the First Amendment. Wil- liams thus reveals a possibly self-defeating flaw in the overbreadth doctrine: when criminal defendants champion speech interests, courts 76 See, e.g., FEC v. Wis. Right to Life, 127 S. Ct. 2652 (2007); Randall v. Sorrell, 126 S. Ct. 2479 (2o06); McConnell v. FEC, 540 U.S. 93 (3003). 1 See, e.g., 13roadrick v. Oklahoma, 413 U.S. 6oT, 611-12 (1972); Dombrowski v. Pfister, 38o 4S. 479, 486 (x965) ' See Donibrowski, 380 U.S. at 486. See generally Henry Paul Monaghan, Overbreadtk, 198r SUP. CT. REV. 1. 3 See inj'a PP. 39°-91 4 128 S. Ct. 1830 0008). ' See id. at 1836-38. $ j, a 111IM1t ++v 1640 Rhode Island Ave., NW, Ste, 650 Washington, DC 20036 Paul S. Ryon tel 12021 736-2200 fax 12021 736-2222 FEC Program Director & www.campaignlegalcenter.org Associate Legal Counsel pryo n@ca mpaignle go Ic enter. o rg Public Financing After Davis: Denial of Appeal in Duke v. Leake Should Put to Rest Concerns Regarding the Constitutionality of Trigger Provisions December 24, 2008 There had been much speculation in the months following the Supreme Court's decision in Davis v. FEC,l striking down the federal law "Millionaire's Amendment," about whether and how the decision would impact lawsuits challenging the constitutionality of public financing program trigger provisions. For example, the reauthorization of a public financing pilot program in New Jersey, which was originally enacted in 2005 and reauthorized in 2007, was abandoned by State Assembly Speaker Joseph Roberts in September of this year over concern's that the law's trigger provisions are unconstitutional Such concerns were then fueled by an Arizona federal district court decision suggesting that public financing program triggers are likely unconstitutional under the Supreme Court's Davis decision.3 Speaker Roberts, for example, explicitly cited the Arizona decision as the reason he gave New Jersey's public financing program a "time out."4 The concerns regarding the constitutionality of public financing program trigger provisions, however, should be put to rest by the Supreme Court's decision in November to leave standing a recent federal appellate court decision explicitly upholding as constitutional a public financing program trigger provision. In Duke v. Leake, the U.S. Court of Appeals for the Fourth Circuit ruled that "North Carolina's provision of matching funds under [its trigger provision] does not violate the First Amendment because the Act does not coerce candidates into opting into the public financing system.i5 Because the appellate court had rendered its decision in Duke prior to the Supreme Court's decision in Davis, the plaintiffs/appellants appealed the decision to the Supreme Court-arguing that the Supreme Court's Davis decision made clear that the Fourth Circuit had erred in upholding the North Carolina trigger provision. The Supreme Court, however, denied the appeal (i.e.,denied the petition for certiorari) and left standing the Fourth Circuit decision in Duke. The Supreme Court's denial of the appeal in Duke is 128 S. Ct. 2759 (2008). z Robert Schwaneberg, 'Clean Elections' Effort Gets Sidelined, STAR-LEDGER, Sept. 3, 2008. 3.See McComish v. Brewer, No. 2:08-ev-1550, Order Denying Motion for Temporary Restraining Order (Aug. 29, 2008); see also McCmnish v. Brewer, No. 2:08-ev-1550, Findings of Fact and Conclusions of Law Re Denial of Motion for Preliminary injunction, 2008 WL 4629337 (Oct. 17, 2008). 4 Robert Schwaneberg, 'Clean Elections' Effort Gets Sidelined, STAR-LEDGER, Sept. 3, 2008. ' Duke v. Leake, 424 F.3d 427, 438 (4th Cir. 2008). strong evidence that a majority of the Supreme Court believes the Fourth Circuit correctly upheld as constitutional the North Carolina trigger provision notwithstanding the Supreme Court's June decision in Davis. This memo analyzes the Supreme Court's decision in Davis and the Fourth Circuit's decision in Duke, in an effort to highlight the important differences between the statutes examined in the two cases-differences that should lead courts to follow the rationale of the Fourth Circuit's Duke decision to conclude that public financing program trigger provisions are not unconstitutional. 1. Davis v. FEC and the Millionaire's Amendment A brief review of what was actually litigated in Davis is in order, to lay a foundation for comparison between the Millionaire's Amendment and public financing program trigger provisions. Under federal law, candidates for the U.S. House of Representatives are typically subject to a $2,300 per election contribution limit, as well as a limit on coordinated party expenditures (i.e., expenditures made by a political party in coordination with the candidate benefiting from the expenditure). Importantly, as the Court noted on the first page of its Davis opinion, "[u]nder the usual circumstances, the same restrictions apply to all the competitors for a seat and their authorized committees."6 But under the Millionaire's Amendment, as the Davis Court explained, when a candidate for the U.S. House of Representatives spent personal fiords in excess of $350,000, "a new, asymmetrical regulatory scheme [came] into play." 7 The self-financing candidate remained subject to the original $2,300 contribution limit and coordinated spending limit, while a non-self-financing opponent was permitted to receive contributions up to treble the original limit (i.e., $6,900 rather than $2,300) and the coordinated party spending limit was eliminated. The legal claim in Davis was that a self-financed candidate's First Amendment rights are violated when such candidate's spending triggers the "asymmetrical regulatory scheme" of differential contribution limits. In assessing any claims that the First Amendment has been violated, the Court engages a two-step analysis. First, the Court examines the challenged statute to determine whether it does in fact burden activity protected by the First Amendment. Second, in the event that the challenged statute does burden First Amendment activity, the Court determines whether there is any government interest sufficient to justify the burden. A. Millionaire's Amendment "Burden" Analysis The Court began its "burden" analysis of the Millionaire's Amendment by noting that in its 1976 decision in Buckley v. Valeos the Court had rejected a cap on candidate expenditure of personal funds as violative of the First Amendment.9 The Court went on Davis, 128 S. Ct, at 2765. 7Id.at2766. 424 U.S. I (1976). Davis, 128 S. Ct. at 2771. 2 to find that, though the Millionaire's Amendment did "not impose a cap on a candidate's expenditure of personal funds, it impose[d] an unprecedented penalty on any candidate who robustly exercises that First Amendment right."10 In the Court's view, the Millionaire's Amendment burdened First Amendment activity because it: [R]equire[d] a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite [the Millionaire's Amendment], but they must shoulder a special and potentially significant burden if they make that choice. See Day v. Holahan, 34 F.3d 1356, 1359-1360 (C.A.8 1994) (concluding that a Minnesota law that increased a candidate's expenditure limits and eligibility for public funds based on independent expenditures against her candidacy burdened the speech of those making the independent expenditures) 11 The Court continued: "Under [the Millionaire's Amendment], the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics." 12 B. Millionaire's Amendment "Government Interest" Analysis Having concluded that the Millionaire's Amendment burdened First Amendment activity, the Court proceeded to step two of its constitutional analysis-determining whether there was any government interest sufficient to justify the burden. The government offered three interests and the Court rejected them all. First, the Court rejected the argument that the burden was justified by a governmental interest in eliminating corruption, noting that the Court had found in Buckley that a candidate's "reliance on personal funds reduces the threat of corruption" 13 posed by private contributions and that by discouraging the use of personal funds the Millionaire's Amendment disserves the anticorruption interest. 14 Second, the Court rejected the government's argument that the Millionaire's Amendment's "asymmetrical limits are justified because they `level electoral opportunities for candidates of different personal wealth,"' noting that the Court's prior decisions " rovide no support for the proposition that this is a legitimate government objective. "p' Finally, the Court rejected the government's claim that the asymmetrical limits are justified because they "ameliorate[] the deleterious effects" of existing contribution limits that "snake it harder for candidates who are not wealthy to raise funds Id. Id at 2771-72 (emphasis added) (citing Day v. Holahan, 34 F.3d 1356, 1359-1360 (8th Cir. 1994) (concluding that a Minnesota law that increased a candidate's expenditure limits and eligibility for public funds based on independent expenditures against her candidacy burdened the speech of those making the independent expenditures)). Id. at 2772 (emphasis added). Id. Lit 2773 (emphasis in original). 14 Id 15 Id. 3 and therefore provide a substantial advantage for wealthy candidates." 16 Withoutjudging the merits of this argument, the Court concluded that the "obvious remedy is to raise or eliminate those limits," not to burden the speech of self-financed candidates through asymmetrical treatment under the law. 17 H. Duke v. Leake and Public Financing Program Trigger Provisions In Duke, the Fourth Circuit considered a constitutional challenge to a North Carolina state law provision that triggers additional public funding for a candidate participating in the voluntary public financing program if the "funds in opposition" to the publicly-financed candidate exceed specified amounts.ls "Funds in opposition" are defined by the law "to include the amount any one nonparticipating candidate has raised or spent (whichever is greater) plus the amount that independent entities have spent to support the nonparticipating candidate or to oppose the participating candidate." 19 The trigger amounts under the statute vary for primary and general elections and are based on several factors. In 2006, for example, the trigger amount for a supreme court primary election was $74,280, while the trigger amount in the general election was $216,650.20 "Funds in opposition" exceeding the trigger amounts are matched with additional public funds for participating candidates up to two times the trigger amount. 21 In Duke, "the plaintiffs' First Amendment argument against the matching funds provision [was] that it `chill[s] and penalize[s] contributions and independent expenditures made on behalf of [nonparticipating] candidates. "'22 The court, however, disagreed, concluding: [T]he state's provision of matching funds does not burden the First Amendment rights o nonparticipating candidates or independent entities that seek to make expenditures on behalf of nonparticipating candidates. The plaintiffs remain free to raise and spend as much money, and engage in as much political speech, as they desire. They will not be jailed, tined, or censured if they exceed the trigger amounts. The only (arguably) adverse consequence that will occur is the distribution of matching funds to any candidates participating in the public financing system. But this does not impinge on the plaintiffs' First Amendment rights. To the contrary, the distribution of these funds "furthers, not abridges, pertinent First Amendment values" by ensuring that the participating candidate will have an opportunity to engage in responsive speech, 23 m Id. at 2774. 17 Id. ix Dake, 524 17.3d at 436. 10 Id. at 433. '0 Id. 21 Id. 2' Id. at 437. " Id. (quoting Buckley v. Valeo, 424 U.S. t, 92-93 (1976)). 4 The Fourth Circuit in Duke explicitly rejected the reasoning of the Eighth Circuit Court of Appeals in Day v, Holahan-a case cited by the Supreme Court in Davis without substantial discussion. In Day, the Eighth Circuit "struck down a matching funds provision, reasoning that the potential `self-censorship' created by the scheme `is no less a burden on speech than is direct government censorship. ii24 The Fourth Circuit in Duke found the Day court's reasoning "unpersuasive," noting that "Day's key flaw is that it equates the potential for self-censorship created by a matching funds scheme with `direct government censorship.ii25 Rejecting Day, the Duke court instead endorsed the reasoning of more recent Eighth Circuit decision in Rorenstiel v. Rodriguez, 26 as well as the First Circuit decision in Daggett v. Comm'n on Governmental Ethics & Election Practices 27 and the Sixth Circuit decision in Gable v. Patton28_all of which upheld public financing trigger provisions. Perhaps encouraged by the Supreme Court's passing reference, without discussion, to the Day decision in Supreme Court's Davis opinion, plaintiffs/appellants in Duke tiled a petition for a writ of certiorari with the Supreme Court, hoping at least four justices (the number necessary for the Court to grant the petition) would view the Fourth Circuit's refusal to apply the rationale of Day in the aftermath of the Supreme Court's Davis decision as an error in law. Plaintiffs/appellants in Duke asked the Court to overturn the Fourth Circuit's decision or, in the alternative, to send the case back to the Fourth Circuit for reconsideration in light of the Davis decision. The Court not only declined to hear the appeal, but also declined to send the case back to the Fourth Circuit for reconsideration. Instead, the Court allowed the Fourth Circuit's decision rejecting the rationale of Day and upholding the public financing trigger provision to stand. Consequently, every circuit court to have considered the constitutionality of a public financing trigger provision-the First, Fourth, Sixth and Eighth Circuits has upheld the trigger. The Supreme Court by denying certiorari in Duke in November 2008 allowed this heavy weight of federal appellate court authority to stand. 111. Applying Davis to Public Financing Program Trigger Provisions Applying the Davis Court's analytical structure and reasoning to assess the constitutionality of public financing program trigger provisions reveals significant distinctions between the Millionaire's Amendment and public financing program trigger provisions both with respect to the "burden" prong of the constitutional analysis and with respect to the "government interest" prong of the analysis. Given these distinctions, the Supreme Court correctly allowed the Fourth Circuit's decision in Duke to stand. "Id. (quoting Day, 34F.3d at 1360). 25 Id. at 437-38 (quoting Day, 34 F.3d at 1360). 2e 101 F. 3d 1544 (8th Cir. 1996). - 27 205 E 3d 445 (1 st Cir. 2002). 21 142 F. 3d 940 (6th Cir. 1998). 5 A. Public Financing Program Trigger Provision "Burden" Analysis Regarding the "burden" on speech, the Davis Court's analytical starting point was the fact that "[u]nder the usual circumstances, the same restrictions apply to all the competitors for a seat"29 This simply is not the case in the context of public financing programs. Candidates participating in public financing programs are subject to much more severe campaign finance restrictions than candidates who choose to finance their campaigns using private funds. • A candidate participating in a public financing program is constrained by a much lower limit or an outright prohibition on private contributions than is a nonparticipating candidate. • A candidate participating in a public financing program is subject to an expenditure limit, whereas a nonparticipating candidate is subject to no expenditure limit. • A candidate participating in public financing programs is often subject to restrictions on haw they can spend their campaign funds, while no such restrictions apply to nonparticipating candidates. • A candidate participating in a public financing program is often subject to more comprehensive auditing of campaign finances than is a nonparticipating candidate. • A candidate participating in a public financing program is often subject to more extensive disclosure requirements than is a nonparticipating candidate. In short, "under usual circumstances," the same restrictions do not apply to a candidate participating in a public financing program and a candidate who is not. A participating candidate accepts significant burdens and disadvantages vis-d-vis a nonparticipating candidate from the get-go. The Buckley Court recognized this fact, explaining: Any disadvantage suffered by operation of the eligibility formulae under [the public financing law] is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing entails voluntary acceptance of an expenditure ceiling. Non-eligible candidates are not subject to that limitation. 30 Comparing a system in which candidates start under the same rules (e.g., the Millionaire's Amendment system) to a system in which candidates start under different rules (e.g., a public financing system) is comparing apples to oranges. The Supreme Court in Davis gave no consideration whatsoever to the latter scenario-the issue simply was not before the Court. 2' Davis v. FEC, 128 S. Ct. at 2765. Buckley, 424 U.S. at 95. 6 Is a privately-financed candidate who has been operating under less restrictive rules than her publicly-financed opponent burdened when the more severe restrictions willingly suffered by the publicly-financed opponent are eased a bit under a public financing program trigger provision? The privately-financed candidate would still arguably be operating under less restrictive rules than her publicly-financed opponent notwithstanding the operation of the trigger provision. Consider the hypothetical example of two candidates running for governor in a state that offers a voluntary public financing option. Candidate A decides to forego the public financing option and instead privately finance her campaign under the state's $10,000 contribution hinit with no limit on how much she may spend. Candidate B decides to participate in the public financing program and, consequently, must agree to raise no private contributions beyond 10,000 $5 "qualifying contributions," which are turned over to the state, and to spend no more than the $1 million grant of public funds. If Candidate A raises and spends $10 million, is Candidate A burdened by a public financing program trigger provision that provides Candidate B with up to $ 1 million dollars in additional public funds to match expenditures above $1 million by a nonparticipating opponent? Bear in mind that Candidate B remains bound by the increased $2 million spending limit and may raise no private funds, while Candidate A continues to raise private funds under a $10,000 limit and spend as much as she raises-S10 million and counting. Unlike the Millionaire's Amendment context, where the self-financed candidate was subject to more restrictive campaign finance laws that a non-self-financed opponent, a self-financed candidate in the public financing context typically operates under less restrictive campaign finance laws than a publicly-financed opponent, even when a trigger provision is in effect. Whereas the Davis Court concluded that under the Millionaire's Amendment, "the vigorous exercise of the right to use personal fiords to finance campaign speech produce[d] fundraising advantages for opponents in the competitive context of electoral politics,"31 the same can not credibly be said about public financing program trigger provisions. It is on this basis that the "burden" analysis in the public financing context is distinguishable from the Davis Court's burden analysis in the Millionaire's Amendment context. B. Public Financing Program Trigger Provision "Government Interest" Analysis Even greater distinctions can be drawn between the government interests asserted and rejected in Davis to justify the Millionaire's Amendment and those that have been asserted and accepted by the Supreme Court and lower courts to justify constitutional burdens that might be associated'with public financing programs. In Buckley, the Supreme Court rejected several constitutional challenges to the federal presidential public financing program. In doing so, the Court recognized several Id. at 2772 (emphasis added). 7 important governmental interests that support public financing generally-several of which arguably justify any First Amendment burdens that might be deemed to result from public financing Program trigger provisions. The Buckley Court found that, in enacting the presidential public financing program, "Congress was legislating for the "general welfare" to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising." 32 The Buckley Court explicitly rejected the argument that the presidential public financing program violated the First Amendment, reasoning that the public financing program was "a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge discussion and participation in the electoral process, goals vital to a self-governing people."33 The presidential public financing program, according to the Court, "furthers, not abridges, pertinent First Amendment values.i34 The Court's elaboration on this point is worth quoting at length. [T]he central purpose of the Speech and Press Clauses was to assure a society in which "uninhibited, robust, and wide-open" public debate concerning matters of public interest would thrive, for only in such society can a healthy representative democracy flourish. Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media, and preferential postal rates and antitrust exemptions for newspapers. 35 The Buckley Court continued: It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions. 36 Importantly, with respect to public financing program trigger provisions, the Buckley Court rejected the argument that the public financing program is unconstitutional because "it does not treat all declared candidates the same." 37 The Court concluded that Congress "was justified in providing both major parties full funding and all other parties only a 12 Buckley, 424 U.S. at 91. " Id. at 92-93 (emphasis added). 31 Id. at 93. » Id. at 93 n.127 (internal citations omitted). 31, Id. at 96. 17 ld. at 97. 8 percentage of the major-party entitlement."as The Court recognized that providing the same amount of funding to all parties would "make it easy to raid the United States Treasury.i39 The Court examined the formula by which the federal public financing program differentially allocates public funds to major and minor party candidates and concluded: [T]he choice of percentage requirement that best accommodates the competing interests involved was for Congress to make. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs. We can not say that Congress' choice falls without the permissible range.40 Unlike the Millionaire's Amendment scrutinized in Davis, which the Court found advanced no legitimate governmental interest, a system of public financing was found by the Buckley Court to advance governmental interests "vital to a self-governing people."41 Whereas the Millionaire's Amendment did not advance the governmental interest in preventing corruption because it increased the size of allowable private contributions for certain candidates and discouraged the non-corrupting expenditure of personal funds, public financing programs have been found by the Court to further the significant governmental interest of eliminating the improper influence of large private contributions.s42 Considering specifically the constitutionality of public financing trigger provisions, a court following Buckley should recognize that just as the presidential public financing program's provisions allocating precious limited public resources to the races where they are most needed (e.g., differential allocation of funds to major and minor party candidates) advances the important governmental interest in protecting the public fisc, so too do public financing trigger provisions that allocate public resources to races where they are most needed (e.g., races in which nonparticipating candidates or independent groups spend well in excess of the original allotment of public funds to participating candidates) advance the important governmental interest in protecting the public fisc. Further, the viability of public financing programs depends on candidates' voluntary decision to participate. If participating candidates do not receive sufficient funds to run competitive races, serious candidates simply will not participate. Given that the Buckley Court found that public financing generally is supported by strong governmental interests, it stands to reason that mechanisms such as trigger provisions that are designed to ensure the viability of public financing programs are supported by the same governmental interests. " Id. at 98. t911 00 id. at 103-04 (internal citation omitted). 41 !d. at 92-93 (emphasis added). 42 Id. at 96. 9 Again, a hypothetical example can illustrate this important point of law. In designing a public financing programs, where a legislature determines that a highly competitive race for the office of state representative costs $1 million, surely it is constitutionally permissible under Buckley for the legislature to enact a public financing program that allocates $1 million in public funds to all eligible participating candidates. But recognizing that only 10% of races for state legislature are competitive, and that the other 90% noncompetitive races cost only $500,000, the legislature might wisely choose to allocate only $500,000 initially to participating candidates in order to advance the important governmental interest in protecting the public fisc-but to incorporate into the public financing program a trigger provision that allocates up to an additional $500,000 on a matching basis to candidates in the approximately 10% of races that are competitive, where the participating candidate's opponent spends in excess of $500,000. Given that Buckley establishes the constitutionality of a program that allocates $1 million to every participating candidate, a program designed to protect the public fisc by targeting $ 1 million only to those races where it is truly needed, and allocating a lesser amount in other races, is likewise constitutional under Buckley. IV. Conclusion Opponents of public financing laws have and may continue to argue that public financing programs generally, and public financing program trigger provisions specifically, are unconstitutional under the Supreme Court's Davis decision. But, simply put, the Davis Court did not decide the issue and public financing program trigger provisions can be distinguished from the Millionaire's Amendment invalidated in Davis. Furthermore, the overwhelming weight of federal court authority including the Fourth Circuit decision this year in Duke, which the Supreme Court left standing when it declined to review the decision last month makes clear that public financing programs generally, and trigger provisions specifically, are constitutional. 10