McComish v. Bennett

  • July 1, 2011
    Money, Politics and the Constitution
    Beyond Citizens United
    The Brennan Center for Justice and The Century Foundation

    By Erik Opsal, communications coordinator at The Brennan Center for Justice.

    For those following campaign finance law, this week’s Supreme Court decision to throw out one provision of Arizona’s public financing system came as no surprise. The Court’s one swing vote, Justice Anthony Kennedy, tipped his hand when, during oral argument, he bluntly asked if it was fair to say the law restricted speech.

    After last year’s sweeping decision in Citizens United, campaign finance reform advocates have come to expect the worst. In five years, the Roberts Court has heard five campaign finance cases. And in those five cases, voters lost out to powerful, wealthy interests every time.

    Although this case is a setback, there is one clear silver lining — public financing remains constitutionally sound. The Chief Justice said so himself. “We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote for the majority. “That is not our business.” As UC-Irvine Law Professor Rick Hasen characterized the Roberts decision:

  • April 5, 2011

    Ariz. State Senator John McComish, who lodged the legal challenge to the state’s campaign finance law that provides funds to candidate who forgo private donations, is becoming a prime example for the law’s worthiness, writes Doug Kendall.

    Kendall, president of the Constitutional Accountability Center, in a piece for The Huffington Post, notes reports about an “unfolding campaign finance scandal involving officials from the Fiesta Bowl,” and McComish.

    Kendall writes:

    As shown in a 276-page report conducted by an outside firm, as well as in news reports, the scandal involves Fiesta Bowl officials allegedly providing freebie trips and gifts to Arizona state legislators, and more than $46,000 in campaign contributions to 23 candidates funneled through Fiesta Bowl employees. Last Thursday, Sen. McComish was forced to file an amended financial disclosure report, acknowledging that he had accepted from Fiesta Bowl officials a gift of more than $500 in value involving a trip to the Big 12 Championship in Dallas in 2009, and had not disclosed this fact as required by Arizona law.

    Kendall notes the story of McComish is coming to light as the U.S. Supreme Court is considering the challenge to the law in McComish v. Bennett, and concludes that the state senator “is becoming Exhibit A in why the Supreme Court should reject his claim.”

    In guest post for ACSblog, law professor Rick Hasen analyzes the future of public campaign financing in light of news reports that a majority of the justices appeared ready at oral argument to invalidate the Arizona law. 

  • March 29, 2011
    Guest Post

    By Rick Hasen, Visiting Professor, University of California, Irvine School of Law. This analysis is cross-posted at the Election Law Blog.

    Will an adverse ruling in McComish doom future viable public financing plans?

    I have now reviewed the transcript of yesterday's oral argument. News reports from oral argument are unanimous in predicting that the Court will strike down the matching fund provision of Arizona's public financing law, which provides extra funding (up to a point) for candidates who participate in the voluntary public financing system and face a high spending opponent or a high independent spending against the candidate. This is no suprise; indeed I predicted this in June, when the Court granted an extraordinary stay in the case.

    More interesting at this point is the question whether there will remain other viable and constitutional public financing systems after the Arizona system falls. In Slate, I explained the logic of why a rational candidate would not choose to participate in a flat public financing system (like the way the moribund presidential public financing system works) unless there are adequate safeguards that the participating candidate won't be outspent. As I wrote at Summary Judgments back in November,

    [A ruling striking down the Arizona law] is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

  • January 24, 2011
    Guest Post

    By Brenda Wright, director of the Democracy Program at Demos. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
    The one-year anniversary of Citizens United v. FEC has prompted many insightful examinations of what the decision has wrought in the past year; but equally important is an assessment of the future of the First Amendment in light of the Supreme Court's current docket - which includes McComish v. Bennett, a challenge to Arizona's public financing law that will be argued on March 28.

    One year ago, I noted that the Roberts Court had, in Citizens United, created the Anatole France First Amendment: in its "majestic impartiality," the First Amendment permits massive corporations and ordinary citizens alike to spend as much as they want to elect their preferred candidates to office.

    In 2011, opponents of public financing now ask the Supreme Court to create the Cowardly Lion First Amendment. You will recall that the Cowardly Lion, when he first appears in "The Wizard of Oz," tries to attack Toto, a tenth of his size; but then is reduced to indignant tears when little Dorothy stands up to him and slaps his nose. In like manner, the McComish petitioners claim a debilitating fear that under Arizona's system, privately financed candidates - the Lions of campaign finance, who can spend as much as they want, without any limit - are facing "hostile speech" (their words) from the Totos - the publicly financed opponents. They cite this fear as creating a constitutional injury requiring Court intervention. In short, the Supreme Court is being asked to declare that the First Amendment exists to ensure the right of privately financed candidates to speak without being responded to by publicly financed candidates.

    Let's put this in context. In recent weeks we've been vividly reminded that persons seeking public office in these rancorous times must all too often be prepared to face death threats and worse. Yet the McComish petitioners argue that these same aspiring public servants must be considered so emotionally fragile that they will be afraid to spend money on their campaigns if they know it could merely trigger additional funds to their opponents to use on responsive campaign ads or mailings - and that the First Amendment must protect them from such a terrible fear.