It’s time to clean up the ‘clean elections’ laws

Craig Millward Contributor
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Pretty soon your money instead of your vote may influence the outcome of an election — whether you like it or not. The worst part is, you won’t control where your money goes, the government will.

Arguments in the Arizona “clean elections” case, Arizona Freedom Club PAC v. Bennett, were recently heard in the U.S. Supreme Court. The Institute for Justice is representing independent political groups that, under this system, cannot run ads supporting a privately funded candidate without the government matching their spending by cutting a check to their publicly funded opponents. Arizona candidates have certainly taken advantage, as in the 2008 election cycle where Arizona taxpayers funded two-thirds of all candidates through the public matching funds system.

Last May, the Ninth U.S. Circuit Court of Appeals upheld Arizona’s “matching funds” system. If the Supreme Court agrees with the Ninth Circuit’s decision, political speech rights, not to mention taxpayer dollars, will be at risk.

Arizona is not the only state that has a matching funds program in place. New Mexico, North Carolina, West Virginia and Wisconsin use matching funds for judicial elections. Hawaii has a pilot program for the County of Hawaii Council elections. And Nebraska provides matching subsidies to statewide candidates who agree to a spending limit if their opponents go over that limit.

Other public financing systems such as the ones in Maine, Connecticut and Florida have been challenged in court. Maine’s statewide public financing system is currently under review, while the statewide system in Connecticut has already been deemed unconstitutional. The public financing system in Florida for gubernatorial candidates was frozen before the 2010 election, when a court concluded that it would also likely be deemed unconstitutional.

Despite the legal controversies, five other states — New York, Illinois, Maryland, Washington and Wyoming — have considered using public funding systems.

What does this all mean? A victory for the “matching fund” program in Arizona may open the door for government on every level to give taxpayer dollars to political candidates.

As a New Yorker, a system like this concerns me greatly. Coming from the land of a $10 billion budget deficit, the highest state gas tax in the nation and a nearly eight percent sales tax, the last thing I want is for the New York legislature to find another reason to raise taxes.

Luckily, the Supreme Court has shown increasing skepticism of government interference with political speech. On the public financing issue, the Court in Davis v. FEC held that the government cannot attempt to level the playing field by raising contribution limits for candidates who are outspent by privately financed candidates. Similar reasoning suggests that government cannot level the playing field by cutting checks to publicly funded candidates.

The Supreme Court should follow Davis and strike down Arizona’s unconstitutional matching funds program. A victory for the First Amendment in June will be a necessary step to ensure that government keeps your tax dollars out of elections and that PACs and other independent groups can do what they were created to do: speak up.

After all, this is America. Everyone should be able to speak up.

Craig Millward works on the Institute for Justice’s award-winning production team. He is a 2010 graduate of Siena College in Loudonville, New York, where he majored in Political Science. He looks forward to a career in the broadcast news field.