Electoral reform a major hit last week — one that has reverberated here in New Jersey.
A federal judge in Arizona ruled Friday that a key provision of that state’s clean elections program was unconstitutional, leading New Jersey Assembly Speaker Joe Roberts to announce that plans to continue and expand the Garden State’s public-financing experiment would be put on hold until the 2011 legislative elections.
U.S. District Judge Roslyn Silver said in her ruling that a recent U.S. Supreme Court
that struck down a federal campaign-finance law intended to level the field for U.S. House candidates facing wealthy opponents. The so-called “millionaire’s amendment” law let opponents accept larger individual contributions than normally allowed and receive unlimited coordinated party expenditures when opponents spend more than $350,000 of their own money.
Silver wrote that the matching funds part of the Clean Elections law is substantially the same as in the Supreme Court case cited by the Republicans.
Silver also noted that Arizona’s matching funds provision can be manipulated in several ways. For instance, an outside political action committee may deliberately run ineffective ads so their favored candidate can collect matching funds.
The decision appears to be a misreading of the Davis decision — the Supreme Court ruling that tossed out the “millionaire’s amendment.” That decision focused on spending limits and the notion that money equals speech. Matching funds, however, do not limit the ability of anyone to spend money; they just provide clean-money candidates with extra cash to maintain a semblance of a level playing field.
The idea that the provision favors
The judge also offered an interesting take on the potential for shenanigans — one so absurd it seems shocking that a judge could have crafted it.
(T)he judge noted the law also provides matching funds when anyone else
spends money on behalf of the privately financed candidate, even without
permission. That, she said, “opens up new avenues for possible corruption.“For example, Silver said, a political action committee can surreptitiously
help a publicly funded candidate by running “ineffective, unwished for
advertising” for the privately funded foe. “That generates funds for the
participating candidate to use at her discretion,” the judge said.
This offsets the public benefit of the public-financing system, she says. Of course, this assumes, of course, that a candidate would be willing to raise significant private money and then spend it to attack himself — a proposition that seems outside the realm of logic.
(She also has a concern — and this is legitimate — that candidates could run as a slate, with only one taking public money and the other taking private cash, creating a situation in which spending limits can be skirted.)
The Arizona decision is not final, as The Arizona Daily Sun points out:
The judge’s ruling is not the last word. While she concluded the evidence presented to her at a Thursday hearing leads her to conclude the matching fund provision is unconstitutional, Silver legally remains open to considering arguments defending the system at a full-blown trial — something that would not occur until after the November election.
So, after a full trial, it is possible that Silver might change her take on clean elections and, even if she doesn’t, the case could make its way up the judicial food chain to the Supreme Court.
In the meantime, New Jersey is tabling its clean elections program to give it time to figure out how to craft a program that will withstand a constitutional challenge, Speaker Roberts said.
“Putting the program on hiatus next year will give Congress and the courts more time to sort out the many issues that have been raised and the ability to give states clear guidelines to follow. It is disappointing that an activist court half a continent away has thrown such a huge obstacle in the way of a good government ethics reform that was making real headway in changing politics in New Jersey for the better.”
I can understand the decision, though I think it may make more sense to push ahead and force the courts to rule on the New Jersey plan, rather than allow it to lay fallow for a year and have any momentum created by its successful piloting in the 14th District this year go to waste.
Hank Kalet 