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Dispatches: Saving Clean Elections

The Princeton Packet / PacketOnline — Thursday, August 7, 2008

By Hank Kalet, Managing Editor

Reports that the state's clean elections law is on life support may be premature.

The political Web site PolitickerNJ.com reported earlier this week that the program "is in serious jeopardy" because of a legal opinion offered last month by the state Office of Legislative Services on the impact of a recent U.S. Supreme Court ruling, in Davis v. Federal Election Commission, on federal campaign-finance rules.

Legislation renewing the program for the 2009 Assembly election, which would include the primaries, has been pulled from consideration and a five-member "working group" will begin meeting later this month to review the OLS opinion and other questions raised about clean elections. Working group members will include Democratic Assemblywoman Linda Greenstein and Sens. Loretta Weinberg and Lou Greenwald and Republican Assemblywoman Amy Handlin and Sen. Bill Baroni.

"Our intention is to do all we can to save clean elections," said Sen. Baroni, who represents Cranbury, Jamesburg, Monroe and South Brunswick. "In light of Davis, very clearly there has been some real pushback on this. We'll do what we can to save this."

In Davis, the court ruled on the so-called "millionaire's amendment," which increased contribution limits for candidates who were running against self-financed opponents.

The court said that the provision, which increased the contribution limit from $2,300 to $6,900 and lifted a $40,900 limit on "coordinated party expenditures," violated a self-financed candidate's free speech rights because it imposed different rules on candidates without a compelling state interest. The OLS, the nonpartisan research arm of the Legislature, said that the court ruling made it likely that the so-called "rescue money" provision of the state's Clean and Fair Elections program would be found by a "reviewing court" to "violate the First Amendment."

Opponents of public financing see the OLS opinion as another arrow in their quiver.

"I think that the Supreme Court decision confirms what I've been saying all along: that this program was flawed from the beginning," Assemblywoman Allison Littell-McHose (R-Sussex), told PolitickerNJ. Ms. Littell-McHose participated in the program in 2007. The OLS, however, appears to have misread the opinion, according to the Brennan Center for Justice at N.Y.U. School of Law.

Laura McCleery, deputy director of the Brennan Center's Democracy Program, said Tuesday that the Davis decision "didn't concern public funding at all."

She said that the court objected to the "millionaire's amendment" because it was asymmetrical. Wealthy, self-funded candidates are "penalized because they are not playing by the same rules as their opponents," she said.

"The court was upset by the fairness of the structure," she said.

The clean elections program, in contrast, is voluntary.

"Opting in to the program involves more constraints," she said. "There is no unfair constraint on someone who opts out. The OLS analysis didn't understand that fundamental point." Public financing laws are justified under Buckley v. Valeo, the 1975 Supreme Court case that provides the foundation for most current campaign-finance laws, because they address corruption, which is a compelling state interest, she said.

"Because (the 'millionaire's amendment') relaxes contribution limits, it can't be for the purpose of preventing corruption," she said. "The court said that there is no reason for there to be a situation like this."

NJ Citizen Action, a liberal interest group advocating for clean elections, also criticized the OLS opinion. "Most states have rescue money or a matching-fund system in their clean-elections laws," Marilyn Carpinteyro, legislative director, for NJ Citizen Action. "New Jersey's law is different because New Jersey places the burden on the clean candidate as opposed to what the 'millionaire's amendment' focused on."

Ms. McCleery said the Brennan Center has won federal district court defenses of clean elections programs in Arizona, Connecticut and North Carolina and plans to issue a legal response to the OLS opinion and be involved in the debate in New Jersey because "this memorandum is sadly misleading."

Sen. Baroni, who participated in the clean elections program in the 14th District in 2007, called the Brennan Center's intervention "good news," because the "rescue fund" provision of clean elections is too important to exclude from the program.

The potential that a candidate might qualify for rescue money is key to convincing candidates to participate, he said.

Locking clean candidates in at a set level of funding without rescue money leaves clean candidates vulnerable to late attacks by well-funded or self-funded candidates who do not participate in clean elections program, or third-party groups running targeted issue ads, as happened in 2007 in the 14th District. Ms. Greenstein qualified for $100,000 in rescue money – in addition to the $526,375 that each of the six 14th District candidates qualified for as part of the clean elections program – after a out-of-state group called Common Sense America began running radio advertisements against her.

Ms. Greenstein said late attacks like that can leave publicly financed candidates at a disadvantage, because they do not have the ability to raise money to respond. Rescue funding provides a necessary defense mechanism, she says. Sen. Baroni agrees. If candidates think they are vulnerable, they won't participate, dooming the system.

And no one benefits if that happens.

Hank Kalet is managing editor of the South Brunswick Post and The Cranbury Press.

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