Statement of Democracy 21 President Fred Wertheimer

In another seriously misguided campaign finance decision, the Supreme Court today by a 5 to 4 vote has misinterpreted the Constitution to hold unconstitutional a form of public financing of elections enacted by the voters of Arizona to prevent government corruption.

The Court in Arizona Free Enterprise v. Bennett declared unconstitutional a provision of the Arizona law that provides additional public funds, or so-called “trigger funds,” to publicly financed candidates who are outspent by privately financed opponents. The “trigger funds” allow publicly financed candidates in Arizona, who are prohibited from raising any private contributions, to respond to large expenditures made against them by privately financed opponents or by outside groups.  

“Trigger funds” provisions like those in the Arizona law do not restrict the speech of any candidate or group and are a sensible feature of a public financing system.

The “trigger funds” provisions of the Arizona law should have been upheld by the Court, whose decision today will also affect a number of state and local public financing systems that have similar provisions. Those systems will now have to be revised in light of the decision.

As wrong as the Court’s decision today is, however, it does not cast any doubt on the continued viability or constitutionality of a number of other existing public financing systems that do not include “trigger funds” or similar provisions.

The Supreme Court in Buckley v. Valeo (1976) upheld the constitutionality of the presidential public financing system, which does not have “trigger funds.” The Court’s holding in Buckley that public financing is constitutional is not affected by today’s Bennett decision.

As Chief Justice John Roberts wrote in the majority opinion today quoting Buckley, "We have said that governments ‘may engage in public financing of election campaigns’ and that doing so can further ‘significant governmental interests’ such as the state interest in preventing corruption."

In upholding the constitutionality of the presidential public financing system in Buckley, the Supreme Court used broad language to approve the purposes served by public financing. The Court stated:    

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.  

The Supreme Court also said in Buckley:

Subtitle H [the presidential public financing system] is a congressional effort not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public [p93] discussion and participation in the electoral process, goals vital to a self-governing people. Thus, Subtitle H furthers, not abridges, pertinent First Amendment values.

The presidential public financing system worked well for most of its existence until it became outdated in recent years as the costs of presidential campaigns outstripped the public funds being provided to participating candidates. Congress has failed, to date, to repair the system and legislation has been introduced in Congress to fix the system.

Since the Supreme Court decision today does not call into question the Buckley decision, existing public financing systems that do not include "trigger fund" provisions,  including the presidential system and a number of state and local systems, remain constitutional and unaffected by the Court decision.

The reform movement to create new public financing systems nationally and at the state and local level will go forward without interruption.

The Buckley decision correctly recognized that a principal goal of public financing of elections is to prevent government corruption. Notwithstanding the Bennett decision, public financing without “trigger funds” remains a constitutional and viable option for financing our elections and combating government corruption.

Democracy 21 joined the Campaign Legal Center in filing an amicus brief in the Bennett case in support of the constitutionality of the Arizona public financing law.