Supreme Court’s Arizona Free Enterprise /McComish decision chips away at states’ rights


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June 27, 2011

Kathay Feng (213) 252-4552

Supreme Court’s Arizona Free Enterprise/McComish decision chips away at states’ rights

but leaves foundation of public financing for campaigns intact

The Supreme Court – in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (consolidated with McComish v. Bennett) – has eroded the ability of states and local jurisdictions to determine how best to use public campaign financing systems to address, as the dissent calls it, “the cancerous effect of this corruption.” Nevertheless, the foundation of public campaign finance programs remains strong.

“We respectfully disagree with the Court’s decision today. The provision struck down by the court actually increased free speech, helped to prevent the corruption and the appearance of corruption that can accompany private campaign contributions, and did so in a fiscally responsible manner,” stated Grant Davis-Denny, Board member of California Common Cause and Counsel for the Clean Elections Institute in its defense of the Arizona Citizens Clean Elections Act. “It is important to note that nothing in the Court’s decision calls into question the constitutionality of other types of public financing systems,” explained Davis-Denny, “such as those that provide matching funds for small donations raised by publicly-funded candidates.”

“Prior to today public financed jurisdictions had more discretion to determine when and how to provide public funds to candidates. The Court has now excluded one of the most efficient mechanisms through which jurisdictions provided candidates with taxpayer funds. However, there are still many legal avenues open to jurisdictions to design powerful public financing programs.” Stated Jessica Levinson, Visiting Associate Clinical Professor at Loyola Law School and consultant to Common Cause.

California Common Cause endorses the federal Fair Elections Now Act, pending in Congress, which allows participating candidates to obtain public funds by voluntarily agreeing to limit their acceptance of large, private donations. Small donations of $100 or less to the Fair Elections candidate are then matched on a five to one basis. In contrast to the Arizona system, Fair Elections candidates would not receive additional funds based on the spending of their privately financed opponents or independent expenditure groups.

Stated Executive Director of California Common Cause, Kathay Feng, “One message is clear from the Court: our local and state jurisdictions need to enhance and improve existing public campaign finance systems as an important mechanism to protect free speech and public participation.”

Statewide and state legislative elections in California will not be impacted by McComish because there currently is no public campaign financing program on the state level.