Back to the Drawing Board in New York City

Today, the U.S. Supreme Court, in a 5 – 4 decision, struck down Arizona’s supplemental public financing grants paid on the basis of an opponent’s level of spending. The majority reasoned that the constitutional problem is “the manner in which that funding is provided – in direct response to the political speech of privately financed candidates and independent groups.” The decision leaves Arizona’s initial “clean money” grant to candidates unmarked. New York City’s law is analogous. Candidates initially receive public funds to match privately raised contributions at a 6:1 rate. Like the initial clean money grant in Arizona, these funds are not pegged to the level of an opponent’s spending. So the constitutionality of this provision is not currently in question. But, separately, New York City makes additional matching funds available (by means of an increased aggregate payment and a higher matching rate – as much as 8.5:1 or more) only when a privately financed opponent raises or spends funds above a trigger level. When this occurs: 1. Eligibility for the increased public funds is based solely on the level of the opponent’s spending/fundraising. 2. The Campaign Finance Board pays an incremental grant equal to the difference between the higher matching rate and the regular 6:1 rate for previously matched contributions. 3. Additional payments match previously unmatched contributions at the higher rate triggered by the level of the opponent’s spending/fundraising. Unlike the 6:1 matching rate for individual New York City resident contributions, which applies across the board regardless of an opponent’s actions, each of these three elements of supplemental funding is now constitutionally vulnerable as a burden on the opponent’s speech. The fact that the supplemental funding also matches individual contributions is likely a distinction without much difference. Some maintain that the Court’s decision may strengthen the relative merits of public financing systems that match individual contributions, as opposed to the “clean money” lump sum model. That’s rather cold comfort, given the Court’s conclusion that freedom for a privately financed candidate’s speech trumps the state’s desire to be fair to the publicly financed opponent. The New York City Campaign Finance Board is drawing distinctions and studying the decision to assess its impact.