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Act 244 - Big Island Comprehensive Public Funding
Option Pilot Program, HB 345, and the Courts
Is Money A Problem For Act 244?
No, in fact, making sure Act 244 gets implemented sooner, not later, will help increase
the amount of money in the Hawaii Election Campaign Fund. The reason the fund has
been declining over the years is because people are not seeing publicly financed elections
working for the public interest. ,
Also, Act 244 has built-in safeguards to make sure it doesn't deplete more money
than necessary from the HECK
1. According to Act 244, there must be at least $3.5 million in the HECF to run
the pilot program for the comprehensive public funding option.
2. Act 244 only allows a maximum of $760,000 to be drawn from the fund.
We realistically expect that the program would draw somewhere from
$300,000 - $550,000 every two years.
What is Davis v FEC case that the Campaign Spending Commission is referencing?
The Campaign Spending Commission is citing two court cases as a grounds for
eliminating the `equalizing funds' mechanism.
1. Davis v FEC- see attached documents for info
In short, this was a court case cited by neoconservative groups Goldwater
Institute and Center for Competitive Politics, along with lawyer James .
Bopp. They claim that the Davis decision renders the "equalizing funds"
mechanism of CPF programs unconstitutional.
While other state circuit courts have upheld the constitutionality of
equalizing funds, the Arizona 9`h circuit did rule that they are
unconstitutional. Afterwards, James Bopp appealed a North Carolina
circuit court decision (which upheld the constitutionality of equalizing
funds) and the U.S. Supreme Court denied that appeal.
Comm. ?~o 10.11
Ref. Tot GI
Ref. Dote APR 13 2009
Brennan Center for Justice at NYU School of Law
Public Funding Systems Remain Constitutional in Light of
Recent Supreme Court Decision in Davis v. FEC
What: On June 26, 2008, the Supreme Court struck down the so-called federal Millionaire's Amendment in the
case of Davis v. Federal Election Commission, 554 U. S. 2008 WL 2520527 (2008). Since that decision,
some are using it to question the viability of voluntary systems for public funding of elections.
Legal analysis suggesting that the Davis decision invalidated public funding systems is wrong. In fact,
triggered matching funds remain constitutional after the Davis decision.
The Court in Davis did not review the issue of public funding. Instead, in that case, the Court analyzed the
constitutionality of the federal "Millionaire's Amendment," which relaxed contribution limits under certain
conditions for only one candidate in a race. Importantly, the Court concluded that there was an "asymmetrical"
burden on speech because, under that Amendment, candidates in the same election had to follow two different
sets of rules on contributions (one set for the "Millionaire," and another, less restrictive, for the non-
"Millionaire"). The Court also held that there was no compelling state interest in maintaining the Amendment,
as its relaxation of limits on one candidate would not prevent corruption or the appearance of corruption.
Public funding is different and remains constitutional. In the case of voluntary public funding systems,
participating candidates accept far more significant constraints than those on non-participating candidates as a
condition of receiving public funds. For example, participants must collect qualifying contributions under strict
limits and must agree to abide by spending limits. Even if participating candidates are provided with some
increment of matching funds to maintain their viability in the face of high-spending opposition, this additional
money, as in New Jersey and elsewhere, is capped at pre-determined levels in order to assure their
reasonableness in light of the public fisc.
Public funding reduces corruption. Courts have repeatedly held, including the Supreme Court in the
landmark case of Buckley v. Valeo, which directly reviewed the constitutionality of presidential public funding,
that public funding serves compelling state interests, including reducing corruption or the appearance of
corruption. The Court in Davis also cited to Buckley in reaffirming the permissibility of public financing:
In Buckley. we held that Congress "may engage in public financing of election campaigns and,may
condition acceptance of public funds on an agreement by the candidate to abide by specified
exper~diturc lirnitetions" even though we found an independent limit on overall campaign expenditures
to be unconstitutional. 424 U.S., at 57, n. 65; see id., at 54-58.
In Buckley, the Supreme Court found that public funding systems serve many critical compelling interests in a
vital democracy. The Buckley Court dismissed claims that the presidential public financing program violated
the First Amendment: writing public funding 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."
And the Court noted that public funding systems strengthen core First Amendment values-
"[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
A mPn~m~n4 val"=~ itin -~;1~ -nf Thn orr-Minn
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LEGAL i1640 Rhode Island Ave., NW. Ste. 650 Washington, DC 20036 Paul S. Ryan
tel (2021736-2200 tax (202) 736-2222 FEC Program Director &
www.compognlegalcentecorg Associate Legal counsel
pryan@campaignlegolcenteeorg
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,1 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 2 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.'A
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 prnvisinnl does not violate the First Amendment
because the Act does not coerce candidates into opting into the public financing systems'
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. CL 2759 (2008).
' Robert Schwaneberg, `Clean Elections' Effort Gets Sidelined, STAR-LEDGER, Sept 3, 2008.
3 See McComish v. Brewer, No. 2:08-cv-1550, Order Denying Motion for'remporary Restraining Order
(Aug. 29, 2008); see also McComish v. Brewer, No. 2:08-cv-1550, Findings of Fact and Conclusions of
Law Rc Denial of Motion for Preliminary Injunction, 2008 WL 4629337 (Oct. 17, 2008).
4 Robert Schwaneberg, 'Clean Elections' Effort Gets Sidelined, S'FAR-LEDGER, Sept. 3, 2008.
5 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 Y. 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 funds in excess of $350,000, "a
new, asymmetrical regulatory scheme [came] into play."' 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 tights 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 deterntine 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. Valeoa the Court had rejected a cap on candidate
expenditure of personal funds as violative of the First Amendment.9 The Court went on
6 Davis, 128 S. C:t. at 2765.
7 td. at 2766.
8 424 U.S. 1 (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[dI 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:
IR]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 ri ght 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 tojustify 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." P51 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 "make it harder for candidates who are not wealthy to raise funds
o Id.
Id. at 2771-72 (emphasis added) (citing Day v. Holahan, 34 F.3d 1356, 1359-1360 (8th Gr. 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. at 2773 (emphasis in original).
10 Id.
is Id.
3
and therefore provide a substantial advantage for wealthy candidates.""' Without judging
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
11. Duke v. Geake and Public Financing Program Trigger Provisions
In Duke, the Fourth Circuit considered a constitutional challenge to a Nort h 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.18 "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."IV 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
[wasl that it `chill[s] and penalize[s] contributions and independent expenditures made on
behalf of I nonparticipating I 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, fined, 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
16 Id. at 2774.
" Id.
iN Duke, 524 Fad at 436.
iv Id. at 433.
20 !d.
2' Id.
e2 Id. at 437.
Id. (quoting Buckler v. Valeo, 424 U.S. I, 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. "'24 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 Rosenstiel v. Rodriguez: 6 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. Patton 2a-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/appellan ts in Duke filed a
petition for a writ of certiorari with the Supreme Court, hoping at least fourjustices (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.
III. 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, 34 F.3d at 1360).
's Id. at 437-38 (quoting Day, 34 Fad at 1360).
101 F. 3d 1544 (8th Cir. 1996).
s' 205 F. 3d 445 (I st Cir. 2002).
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 how 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-a-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.
29 Davis v. FEC, 128 S. Ct. at 2765.
30 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 limit 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 $10,000 limit and spend as much as she raises-$I0 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 funds to finance
campaign speech produce[d] fundraising advantages for opponents in the competitive
context of electoral politics,i31 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
td. 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 fundrai sing. "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."34 The Court's
elaboration on this point is worth quoting at length.
(The 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 46
Importantly, with respect to public financing program trigger provisions, the Buckley
Court rejected the argument that the public financin~ program is unconstitutional because
"it does not treat all declared candidates the same."3 The Court concluded that Congress
"was justified in providing both major parties full funding and all other parties only a
3 2 Buckley, 424 U.S. at 91.
33 Id. at 92-93 (emphasis added).
as Id. at 93.
~s I& at 93 n.127 (internal citations omitted).
16 Id. at 96.
a' Id. at 97.
8
percentage of the major-party entitlement. "38 The Court recognized that providing the
same amount of funding to all parties would "make it easy to raid the United States
Treasury."39 The Court examined the formula by which the federal public financing
program differentially allocates public funds to major and minor party candidates and
concluded:
ITJhe 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. "42
Considering specifically the constitutionality of public financing trigger provisions, a
court following Buckley should recognize thatjust 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.
's Id. at 98.
39 Id
4' Id. at 103-04 (internal citation omitted).
9' /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 legislative 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 $ l 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