The Times, Trenton

Clean Elections May Dodge Threat

The Times of Trenton — Monday, August 18, 2008

Has a recent U.S. Supreme Court decision threatened a key part of New Jersey's publicly funded Clean Elections program?

The nonpartisan state Office of Legislative Services says yes, and opponents of Clean Elections have seized on the decision as a weapon. The program is "mortally wounded," Assemblyman Jay Webber, R-Morris Plains, told reporters last week, with obvious relish.

Not so fast, say other authorities. They argue that OLS and the program's foes have misread the Supreme Court's June 26 ruling in the case of Davis vs. Federal Election Commission.

The debate is complex and may excite no one but policy wonks, but a lot is at stake. Clean Elections is part of the unending effort of good-government advocates to reduce the disproportionate influence of special interests at the Statehouse.

After limited test runs in the 2005 and 2007 legislative races, the program would be renewed and extended to eight Assembly districts in 2009 under a new bill, A100, but the bill's enactment is far from certain.

To participate in Clean Elections, candidates must raise between $4,000 and $8,000 in $10 contributions, then limit their spending to what the state provides. A100 would give these candidates from $37,500 to $75,000 in state money for a primary election and the same for a general election, with exact amounts depending on several factors. Those running unopposed, or unaffiliated with a major party, would receive less.

However, additional "rescue money" can be awarded if the Clean candidate is outspent by a nonparticipating opponent or is the target of an independent opposition group. Last year, Assemblywoman Linda Greenstein, D-Plainsboro, got $100,000 in extra funds after an out-of-state right-wing organization poured well over that amount into ads attacking her candidacy.

The availability of rescue money is an important incentive to candidates to take part in Clean Elections. But OLS concluded that it is jeopardized by the Davis decision – even though the decision had nothing to do with public financing.

In Davis, the Supremes struck down part of the McCain-Feingold campaign reform law of 2002 called the Millionaire's Amendment. The law bars candidates for the House of Representatives from accepting individual contributions of more than $2,300 and coordinated party aid of more than $40,900, but the Millionaire's Amendment relaxes those restrictions for a candidate whose opponent is self-funded and amasses more than $350,000 in campaign money.

This produces a "new, asymmetrical regulatory scheme," the court found, which burdens the wealthy candidate's First Amendment right to expend personal funds, because it sets a higher ceiling for his or her opponent on contributions from outside sources. Moreover, the court said, because there is no risk of corruption when a wealthy candidate spends his or her own money, the Millionaire's Amendment serves no public interest that would justify the unequal rules.

New Jersey's OLS concluded that the Davis ruling probably would lead a reviewing court to throw out the rescue money provision of the Clean Elections law. "The only purpose served by providing additional public funds to a candidate participating in a public financing program in order to counter an opponent's expenditures above a threshold amount, or independent expenditures that have a negative effect, is to create a more level playing field by equalizing funding between candidates," OLS explained. "Like the increased limits at issue in Davis, which discouraged a self-financing candidate's expenditure of personal funds, the rescue money provisions of A100 would deter freedom of expression by a nonparticipating candidate or a group making an independent expenditure without sufficient justification because rescue money does not address the risk of actual or perceived corruption."

The Campaign Legal Center (CLC) of Washington, D.C., has challenged this conclusion on grounds that "significant distinctions" exist between the Millionaire's Amendment and the triggering provisions of public financing programs.

Under public financing, it noted, "a participating candidate accepts significant burdens and disadvantages vis-a-vis a nonparticipating candidate from the get-go." Those who receive public funds are barred from private fund raising, or at best are allowed to collect much less than their opponents. Their spending is restricted, and their disclosure and auditing requirements often are more stringent.

"Comparing a system in which candidates start under the same rules (e.g. the Millionaire's Amendment system) to a system in which candidates start under different rules (e.g. a public financing system) is comparing apples to oranges," the CLC said. "The Supreme Court in Davis gave no consideration whatever to the latter scenario – the issue simply was not before the court...

"Any anxiety on the part of policymakers regarding the impact of the Davis decision on public financing programs is, at the very least, premature, if not entirely unwarranted."

A similar argument is made by Laura McCleery of the Brennan Center for Justice at New York University. The OLS opinion was "sadly misleading," McCleery told The South Brunswick Post and Cranbury Press, because it didn't acknowledge the voluntary nature of the Clean Elections program. "Opting into the program involves more constraints," she said. "There is no unfair constraint on someone who opts out."

The Davis ruling isn't holding back a statewide public financing program for legislative candidates that is under way this year in Connecticut. "I am not too worried," Beth Rothman, its director, told Ingrid Reed of Rutgers' Eagleton Institute by e-mail. The acceptance of a spending limit by participating candidates "should tilt any argument about whether the balance of benefits and burdens is appropriate, even where the supplemental grant provisions are at issue," she added.

New Jersey legislators are rightly respectful of the legal opinions of their Office of Legislative Services. Nevertheless, they shouldn't abandon rescue money – much less Clean Elections itself – because of this one.

Copyright 2008 The Times of Trenton

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