How Public Financing Can Solve the 1st Amendment Problems with Federal Campaign Finance. - Fordham Intellectual Property, Media & Entertainment Law Journal
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How Public Financing Can Solve the 1st Amendment Problems with Federal Campaign Finance.

How Public Financing Can Solve the 1st Amendment Problems with Federal Campaign Finance.

New York City’s public campaign finance regime transformed the 2013 mayoral campaign into a more diverse and egalitarian affair compared to our elections nationally. The Brennan Center for Justice found that New York City public financed candidates had a higher participation of low income and minorities giving when compared to the non-public financed State level candidates.

Nationally, public financing has experienced a severe setback. Both Barack Obama and Mitt Romney opted out of public financing in order to finance an unprecedented 1 billion dollar campaign. However, New York City’s public financing regime could be applied nationally to curb the corrupting influence of money in politics.

The First Amendment and campaign finance regulation have had a tumultous relationship in the Supreme Court. The Court in the 1976 decision Buckley v. Valeo warned of “the increasing importance of the communications media” which makes “the raising of large sums of money an ever more essential ingredient of an effective candidacy,” and “to the extent that large contributions are given to secure political quid pro quo from current and political office holders, the integrity of our system . . . is undermined.” Thus the Court gave us the constitutionally permissible interest for regulating campaign speech: stopping “corruption and the appearance of corruption.” An interest that the Court in Citizens United v. FEC found not to apply to so-called Super PACs that made expenditures without the coordination of candidates and thus, as the Court concluded, without a danger of quid pro quo corruption.

Citizens United heralded a predictable explosion in campaign spending. 2010 saw a record 4 billion dollar price tag, and 2012 saw an 8 billion dollar price tag. Given the corrupting influence this money will undoubtedly inflict upon our politics, the need for constitutionally permissible checks on money and politics is essential. And that check can come in the form of a small donor public financing system much like the one employed just this Fall in the New York City mayoral race.

In New York, candidates that agree to spending limits get a liberal 6-to-1 match on contributions from city residents for up to $175. And the system is very popular, out of the 282 people running for City Council in 2009, nearly 78 percent participated. All of the major mayoral candidates this year participated in the program as well.

Though the New York system has enjoyed great success it was not perfectly unassailable in the courts. The Supreme Court held in Arizona Free Enterprise v. Bennett that “trigger systems” may not be set off by the kind of “independent expenditures” at issue in Citizens United, because it violates the First Amendment by chilling the political speech of the opponent. This resulted in the nullification of New York’s trigger system which ensured public financed candidates would not be tremendously out spent by their opposition by “triggering” an increase in the matching rate.

It would seem that a public finance system without the trigger would be effectively useless. However prior to Arizona Free Enterprise, only four percent of public funds came from the bonus payments, and bonuses were triggered in less than ten percent of elections.

Needless to say that a New York style national public financing regime would face tremendous hurdles in attracting candidates to participate. Agreeing to the spending limits could mean foresaking the temptations of Super PACs, and having the courage to face high-spending opponents. However, if the success New York City has enjoyed in increasing minority and low income participation along with minimal bonus payments, there is a possibility that this may work nationally.

Kwame Akosah

Kwame Akosah is a second year Fordham law student and IPLJ staff member. He developed an interest in IP while working at a comic book publisher in Los Angeles prior to entering law school. He has an interest in IP issues relevant to the internet economy, privacy law, and civil liberties.