More Spending Means More Constitutional Protection?

This week a New York Times editorial decried the role independent expenditures will likely play in the election to North Carolina’s supreme court.  That state’s legislature had designed a public financing program to counter such spending with additional public funds; a provision that is now inoperative based on the reasoning of last year’s U.S. Supreme Court decision in Arizona Free Enterprise v. Bennett.  Similar trigger provisions in New York City were invalidated pursuant to a federal court order issued in December 2011. What remains in New York City’s law are two alternative funding caps: 1)      A 6:1 public to private dollar match, up to 55 percent of the publicly financed candidate’s spending limit.  This is the standard funding level. 2)      A 6:1 match, but only up to one-quarter of 55 percent of the spending limit.  This reduced funding level applies if no opponent has raised or spent more than one-fifth of the spending limit (or met alternative specified criteria for competitiveness). Let’s use a New York City Council election to illustrate.  The spending limit is $168,000.  Candidate A opposes Candidate B.  Candidate A may qualify to receive total public funds of $23,100 at a 6:1 rate, as long as Candidate B raises or spends no more than $33,600 (one fifth of $168,000).  Once Candidate B exceeds that level, Candidate A may receive up to $92,400 in public funds (the 6:1 payment rate remains unchanged). Unlike the North Carolina, Arizona, and other New York City provisions that were invalidated, the second NYC cap was not designed to increase public funding to help candidates compete against uncapped spending.  Rather, its purpose was to keep public funding low to avoid a waste of taxpayer dollars in non-competitive races. Is a legislative intent to avoid wasteful expenditure of public funds coupled with a statutory design that negates a potential competitive advantage for the publicly financed candidate enough to avoid invalidation under Arizona Free Enterprise?  One might think not, since the NYC provisions could be understood as also deterring speech by non-publicly-financed candidates (i.e., spending above one-fifth of the publicly financed opponent’s spending limit). On the other hand, this “triggered” funding in NYC is not “additional” to close a competitive advantage, but rather just “normal” to satisfy an entitlement.   This funding does not address the capacity of a well-financed candidate to exceed an opponent’s spending limit.  Rather, the trigger level is set well below the spending limit so as to define a minimally competitive opponent whose campaign activities merit merely ordinary recognition in the regulatory scheme (i.e., the standard payment cap).  Is a provision addressed solely to a candidate’s minimal campaign activity subject to a different constitutional analysis than one that arguably punishes a candidate for maximal campaign activity? Consider Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).  In a 6 – 3 decision (a majority that included three members of the 5 – 4 majority in Arizona Free Enterprise), the Court upheld a public television station’s exclusion of a Congressional candidate from a televised debate.  That state action was upheld as a reasonable, viewpoint neutral exercise of journalistic discretion based on the candidate’s “objective lack of support.”  Among the objective criteria the Court found unobjectionable was the candidate’s lack of “financial support.” The First Amendment does not compel wasteful use of public taxpayer dollars any more than wasteful use of public television minutes.  Calibrating the level of public financing for a candidate according to a viewpoint-neutral assessment of the “seriousness” of an opponent might therefore not be treated as unconstitutional punishment for an opponent whose spending (i.e., speech) objectively demonstrates “seriousness”. If Arizona Free Enterprise does, in fact, afford public financing jurisdictions this much discretion for trigger provisions, the question becomes when does a “serious” candidate become “too serious” for government intervention to be countenanced under the First Amendment.  In other words, a candidate’s level of spending in relation to a statutory spending limit is not just speech but would also determine the extent of his or her constitutional protection. If Arizona Free Enterprise signals a doctrine of “spending creates rights”, the decision may ultimately prove to be as revolutionary as Citizens United’s advancement of First Amendment protections for corporate political spending.