The Reality and Purpose of Public Financing Triggers, and Government Ethics

Reading the Supreme Court majority and dissent opinions in McComish v. Bennett (attached, see below; actually Arizona Free Enterprise Club's Freedom Club PAC v. Bennett at the Supreme Court level) is a very jarring experience that I highly recommend to anyone interested in government ethics. One opinion presents the world as we know it. The other opinion exists in a different world, a world without action and inaction on the part of legislative officials that can be tied directly to contributions in support of their campaigns. The other opinion also does not acknowledge the real-world fact that most competitive candidates will not participate in a public campaign financing program that does not have a trigger provision.

The 5-4 majority decision declares these trigger provisions unconstitutional. Trigger provisions provide additional grants to match certain expenditures by nonparticipating candidates and independent groups (the court calls trigger provisions "matching fund provisions").

On p. 23, Justice Roberts' majority opinion says:

[W]hen confronted with a choice between fighting corruption and equalizing speech, the drafters of the matching funds provision chose the latter. That significantly undermines any notion that the “Equal funding of candidates” provision is meant to serve some interest other than an interest in equalizing funds.

Both opinions recognize that corruption is an issue, but the majority opinion chooses to prevent states from fighting corruption by employing the concept of "equalizing speech" to make it falsely appear that the trigger was intended only to deal with free speech and not corruption.

It is impossible to believe that Justice Roberts' imagination is so limited as to say the following (p. 26) despite all that has been written and said about the importance of trigger provisions to public financing:

In the face of such ascetic contribution limits, strict disclosure requirements, and the general availability of public funding, it is hard to imagine what marginal corruption deterrence could be generated by the matching funds provision.

Justice Kagan's dissent opinion begins by explaining why the trigger came to be and why it is necessary (see the 37th page of the file):

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government. ...

This is the view of the political world that led to the practical solution of public campaign financing. As Justice Kagan recognizes, regular campaign finance rules have turned out not to be enough to prevent corruption, and public financing without a trigger provision did not attract major candidates. That's why the trigger was created. Not to create a level playing field, not to burden anyone's free speech rights, but to make public financing work.

The fact that Justice Roberts was unwilling to even recognize this essential reality of public financing programs taints every word in the majority opinion. If he had said, "I recognize that grant-based public financing will not work without a trigger, and that without public financing there will arguably be far more corruption, but free speech is more important than corruption," then the majority opinion would at least seem honest. But it does not.

It's not just the reality that Justice Roberts ignores, it's also the purpose behind the constitutional protection. Again, Justice Kagan focuses on the purpose behind the free speech provision and applies that purpose to the case (p. 3 of her opinion):

The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anti-corruption statute ... violates this constitutional protection.

A similar refusal to look at the purpose behind the constitutional provision is central to the argument for applying legislative immunity to government ethics. No court decision has yet to recognize that legislative immunity and government ethics have the exact same purpose:  to ensure that representatives act on behalf of their constituents rather than on behalf of themselves. If a court were to acknowledge this, it would force them into a balancing mode, in which they may very well find that legislative immunity has no role in government ethics. Instead, they find that legislative immunity is absolute and untouchable.

Dishonesty is not, however, the issue with legislative immunity, because so little has been written about legislative immunity and government ethics. I wish my ideas would be taken up and examined at length by practitioners, academics, and institutes, but it doesn't look that's going to happen any time soon.

By the way, I wear two hats here, one as administrator of a public campaign financing program in New Haven, CT (which has a hybrid trigger, only one half of which is arguably unconstitutional) and the other as government ethics consultant leading the lack of a campaign against legislative immunity's application to government ethics.

Robert Wechsler
Director of Research-Retired, City Ethics

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