U.S. Supreme Court Finds ‘Trigger’ Funds Violate First Amendment

by Hugh McQuaid | Jun 27, 2011 1:22pm Google
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Posted to: Courts, Election 2010, Election 2012, Legal

The U.S. Supreme Court ruled Monday in an Arizona case that “trigger” funds in publicly funded campaign programs are in violation of the First Amendment.

“Trigger” funds are additional grants to political candidates participating in public financing, which kick in when spending by non-participating opponents or outside groups exceed the candidate’s original grant.

Initially Connecticut’s Citizens Election program contained a trigger provision and that provision was in place for last year’s primaries. Then-candidate Dan Malloy benefited from the provision in his primary campaign against Ned Lamont, just as Republican candidate then-Lt. Gov. Michael Fedele did in his campaign against Tom Foley.

But the Second Circuit Court of Appeals ruled the “trigger” funds unconstitutional in July and the state legislature overrode the veto of then-Gov. M. Jodi Rell to remove the provision from the law in August.

In November the nation’s high court granted a petition to review an Arizona case, McComish v. Bennett, challenging the constitutionality of trigger funds within that state’s Citizens Clean Election Act. In a close vote, the court held five to four that the law subsidized the speech of some at the expense of others, something it said does not sustain First Amendment scrutiny.

“This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest,” Chief Justice John Roberts wrote.

Justice Elena Kagan, writing the dissenting opinion, said the court had no precedent or guiding principles in striking down the law, which she said fostered governmental response to the will of the people.

“Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all .And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals,” she wrote. “Truly, democracy is not a game.”

The decision is just the latest example of the court siding with “big-moneyed interests,” a prepared statement from Common Cause said.

“As the Supreme Court continues its effort to dismantle common sense campaign reform legislation, it’s up to members of Congress, as well as lawmakers in the states, to move forward with legislation to ensure our elections are of, by and for the people—not bought and paid for by special interests,” said Bob Edgar, president of Common Cause.

The organization’s vice president, Karen Hobert Flyn, said the group strongly disagreed with the court’s ruling but said it is not the end of public financing.

“[Connecticut’s] own Citizens Election program functioned effectively without trigger provisions in the general election of 2010,” she said.

Attorney General George Jepsen also criticized the court for the decision, which he said undercuts public attempts at reforming the elections process.

“I strongly disagree with the United States Supreme Court, which has once again seen fit to interfere with democratically enacted reforms to our system of financing electoral campaigns. Voters are determined to find ways to fix a system that favors highly financed candidates, but the Court is just as determined to be an obstacle to the public will. I am concerned this decision will lead to even higher campaign spending to which publicly financed candidates will be unable to respond. Ultimately, the decision will negatively impact the efficacy of publicly financed electoral campaigns,” he said in a prepared statement.

But opponents of publicly funded campaigns were quick to commend the decision. The Yankee Institute for Public Policy, which volunteered information to assist the court on the case, hailed the ruling as a victory.

“We applaud the Court’s ruling today as a victory for free speech. Taxpayers should not be forced to pay for the campaigns of candidates they oppose,” said Fergus Cullen, the institute’s executive director.

Cullen said that the government funding of political candidates usually affects the outcome of elections, tipping them towards one candidate or another. Elections should be left up to voters to decide, he said. 

Tags: Hugh McQuaid, Citizens Election Program, campaign finance, free speech, connecticut

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