[EL] McCommish & "triggers"

[Daniel Meek, Attorney]

The _McComish_ (_AFECFCPAC_) appears to forbid any trigger which depends 
on the amount of money raised or spent by an opponent.  Both of your 
models change the requirements applicable to the participating candidate 
when the non-participating candidate exceeds a certain amount in 
spending.  Thus, your models would appear to be vulnerable under _McComish_.

There could be a trigger that in no way depends on the amount of money 
raised or spent by a non-participating candidate.  For example, the 
program could provide supplemental funding to any participating 
candidate who is opposed by one or more non-participants and is shown by 
professional polls (say 30 days before the election) to be not more than 
say 10% of the vote away from winning the seat.  This would focus the 
supplemental funds on participating candidates who are likely to be able 
to use the additional funds to win and thus allow each supplemental fund 
grant to be larger than otherwise.

Five justices believe that individuals and groups have a First Amendment 
right to spend unlimited sums on campaigns and a First Amendment right 
not to be penalized (relative to a publicly-funded candidate) for the 
level of those expenditures.  I have seen no case which holds that 
anyone has a First Amendment right to win an election or to preserve a 
lead in the polls.

Daniel Meek
Attorney

10949 S.W. 4th Avenue
Suite 1000
Portland, OR 97219
503-293-9021 phone
866-926-9646 fax
dan at meek.net


On 6/27/2011 1:46 PM, Elmendorf, Christopher wrote:
> Here's a question for the list, germane to Rick's "New York City as a 
> Model" post:  Are "triggers" necessarily dead after McCommish?  
> Consider two scenarios.
> _1.  The "Release" Model_.  In this model, the state or city with a 
> public financing program simply releases participating candidates from 
> the expenditure cap if spending by a nonparticipating candidate 
> exceeds the cap for participating candidates.  In some sense this 
> "penalizes" speech by the nonparticipating candidate, but the penalty 
> is nothing but the restoration of the libertarian or quasi-libertarian 
> status quo that would have obtained absent the public 
> financing program.  Unconstitutional?
> _2.  The "Matching Funds & Tightened Contribution Limit" Model_.   If 
> such a "release" from the applicable expenditure limit is not 
> unconstitutional, then how about the following variant, which makes 
> use of matching funds.  Assume a spending limit of $100,000 for 
> participating candidates, and a contribution limit of $1000, which 
> applies to all candidates.  In the event that a nonparticipating 
> candidate spends more than $100,000, the spending limit for the 
> participating candidate is raised in an amount equal to the "excess" 
> spending by the nonparticipating candidate, provided, however, 
> that the new spending must come from contributions of $200 or less, 
> which contributions are matched 2:1 with public funds.
> Is scenario #2 per-se unconstitutional, because the state is not 
> merely releasing the participating candidate from spending limits 
> (restoring the libertarian baseline), but rather is subsidizing speech 
> antagonistic to the speech of the nonparticipating candidate 
> exercising her First Amendment rights?  But what if it's actually much 
> more difficult under scenario #2 for participating candidates to 
> combat the speech of nonpaticipating candidates than in scenario #1?  
> In that case, it's hard to see how the "burden" placed on 
> constitutionally protected speech under scenario #2 could rise to the 
> level of constitutional significance, assuming that there's no 
> constitutional objection to scenario #1.  (On the other hand, it would 
> be no easy task for the courts to make this relative burden judgment . 
> . .)
> Thoughts?
> -- Chris
> Christopher S. Elmendorf
> Professor of Law
> University of California at Davis
> 400 Mrak Hall Drive
> Davis, CA 95616
> tel: 530.752.5756
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu 
> [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick 
> Hasen [rhasen at law.uci.edu]
> *Sent:* Monday, June 27, 2011 1:12 PM
> *To:* law-election at uci.edu
> *Subject:* [EL] more news 6/27/11
>
>
>     “New York City as a Model?” <http://electionlawblog.org/?p=19748>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19748> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> I have written this post 
> <http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/new-york-city-as-a-model-for-campaign-finance-laws> 
> for the /New York Times’ /“Room for Debate” discussion, “Where to Now 
> on Public Financing?”  Other contributors so far are Guy Charles 
> <http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/the-courts-battle-of-ideology>, 
> Brad Smith 
> <http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/the-courts-separation-of-campaign-and-state>, 
> and Zephyr Teachout 
> <http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/matching-funds-what-the-court-didnt-touch>.
>
> My contribution begins:
>
>     It wasn’t all bad news for campaign finance reformers in the
>     Supreme Court decision stripping Arizona’s matching funds
>     provision from its law giving public financing for state
>     candidates. Among other things
>     <http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court>,
>     the court confirmed that whether governments enact public
>     financing is “not our business.” The issue is how the plans
>     provide the financing, and the big question now is whether New
>     York City’s system can become a model for the country.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19748&title=%E2%80%9CNew%20York%20City%20as%20a%20Model%3F%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     Meanwhile, in Chicago <http://electionlawblog.org/?p=19745>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19745> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Blagojevich guilty 
> <http://www.nytimes.com/2011/06/28/us/28blagojevich.html?hp>.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19745&title=Meanwhile%2C%20in%20Chicago&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12> | Comments Off
>
>
>     Investigation Coming to Wisconsin Supreme Court?
>     <http://electionlawblog.org/?p=19740>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19740> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Howard <http://howappealing.law.com/062711.html#042137>has the update.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19740&title=Investigation%20Coming%20to%20Wisconsin%20Supreme%20Court%3F&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, judicial 
> elections <http://electionlawblog.org/?cat=19> | Comments Off
>
>
>     Meanwhile, at the FEC <http://electionlawblog.org/?p=19737>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19737> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> The Republican Commissioners take another step away 
> <http://electionlawblog.org/wp-content/uploads/11044293607.pdf> from 
> effective disclosure.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19737&title=Meanwhile%2C%20at%20the%20FEC&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments 
> Off
>
>
>     What Does Today’s Opinion Mean for NYC and FENA?
>     <http://electionlawblog.org/?p=19734>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19734> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Stay tuned. <http://www.nytimes.com/roomfordebate>
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19734&title=What%20Does%20Today%E2%80%99s%20Opinion%20Mean%20for%20NYC%20and%20FENA%3F&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     “Chief Justice Roberts to Arizona: Take Your Thumb Off the Scale!”
>     <http://electionlawblog.org/?p=19731>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19731> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Hoersting 
> <http://www.nationalreview.com/bench-memos/270581/chief-justice-roberts-arizona-take-your-thumb-scale-stephen-m-hoersting> 
> at Bench Memos.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19731&title=%E2%80%9CChief%20Justice%20Roberts%20to%20Arizona%3A%20Take%20Your%20Thumb%20Off%20the%20Scale%21%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     “Is the Court Energized by Its Critics?”
>     <http://electionlawblog.org/?p=19727>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19727> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Paul Clement <http://www.slate.com/id/2297410/entry/2297808/>on the 
> Arizona case [Corrected post, original post said that this Breakfast 
> Table entry was written by Dahlia Lithwick].
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19727&title=%E2%80%9CIs%20the%20Court%20Energized%20by%20Its%20Critics%3F%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     “The Arizona Campaign Finance Law: The Surprising Good News in the
>     Supreme Court’s New Decision” <http://electionlawblog.org/?p=19725>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19725> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> I have written this commentary 
> <http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court> 
> for /The New Republic/.  It begins:
>
>     Campaign finance laws have now gone 0 for 5 in the Roberts Court.
>     Monday’s Supreme Court decision
>     <http://www.supremecourt.gov/opinions/10pdf/10-238.pdf> striking
>     down the matching funds portion of Arizona’s voluntary public
>     financing law—which provided extra public financing for candidates
>     facing free-spending opponents or major outside spending—was no
>     surprise. Indeed, I predicted
>     <http://electionlawblog.org/archives/011095.html> laws like
>     Arizona’s were doomed back in 2008, on the day the Court struck
>     down
>     <http://scholar.google.com/scholar_case?case=5092223370493741422&q=davis+v.+federal+election+commission&hl=en&as_sdt=2,5&as_vis=1>
>     a portion of the McCain-Feingold law which raised contribution
>     limits for candidates facing millionaire opponents. The Roberts
>     Court saw both laws as impermissibly trying to level the electoral
>     playing field. Since 2005, the Court has also struck down
>     <http://scholar.google.com/scholar_case?case=13551506278581494953&hl=en&as_sdt=2&as_vis=1&oi=scholarr>
>     Vermont’s campaign contribution limits as too low, narrowly
>     interpreted
>     <http://scholar.google.com/scholar_case?case=12228748998297097461&q=wisconsin+right+to+life+v+fec&hl=en&as_sdt=2,5&as_vis=1>
>     the McCain-Feingold rules governing corporate campaign spending,
>     and then dealt a death blow to those limits in its most
>     controversial decision to date, /Citizens United
>     <http://scholar.google.com/scholar_case?case=6233137937069871624&q=citizens+united+v.+fec&hl=en&as_sdt=2,5&as_vis=1>/.
>
>     Yet today’s decision brings three pieces of unexpected good news
>     to those of us who believe that reasonable campaign finance
>     regulation is not only constitutional, but essential to prevent
>     corruption and ensure fairness in our democracy.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19725&title=%E2%80%9CThe%20Arizona%20Campaign%20Finance%20Law%3A%20The%20Surprising%20Good%20News%20in%20the%20Supreme%20Court%E2%80%99s%20New%20Decision%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     More Statements on McComish <http://electionlawblog.org/?p=19722>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19722> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Campaign Finance Institute 
> <http://www.cfinst.org/Press/PReleases/11-06-27/CFI_Statement_on_McComish_Decision.aspx>; 
> Demos 
> <http://www.demos.org/press.cfm?currentarticleID=D1F2E593-3FF4-6C82-551601FCFF7BAE2A>.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19722&title=More%20Statements%20on%20McComish&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     IJ Wins, with Links Galore on Arizona Case
>     <http://electionlawblog.org/?p=19719>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19719> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> See here 
> <http://www.makenolaw.org/blog/8-government/205-free-speech-wins-ij-a-goldwater-score-major-supreme-court-victory>.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19719&title=IJ%20Wins%2C%20with%20Links%20Galore%20on%20Arizona%20Case&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     Timely <http://electionlawblog.org/?p=19716>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19716> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> A Special Edition of Gavel to Gavel looks at: Public Financing of 
> Judicial Campaign 
> <http://www.ncsconline.org/D_Research/gaveltogavel/Public%20Financing%20Special%20Edition.pdf>s.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19716&title=Timely&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, 
> judicial elections <http://electionlawblog.org/?cat=19> | Comments Off
>
>
>     News and Reactions on AZ Case <http://electionlawblog.org/?p=19712>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19712> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> /NY Times/; 
> <http://www.nytimes.com/2011/06/28/us/politics/28campaign.html> AP 
> <http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_CAMPAIGN_FINANCE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>; 
> /SF Examiner/ 
> <http://www.sfexaminer.com/blogs/beltway-confidential/2011/06/supreme-court-overturns-arizona-campaign-finance-law>; 
> CCP 
> <http://www.campaignfreedom.org/newsroom/detail/supreme-court-strikes-down-matching-funds-provision>; 
> Brennan Center 
> <http://www.brennancenter.org/content/resource/supreme_court_strikes_down_trigger_funds_but_public_financing_laws_remain_i>; 
> Justice at Stake <http://www.gavelgrab.org/?p=22009>; Democracy21 
> <http://bit.ly/meDJWQ>; Heather Gerken 
> <http://balkin.blogspot.com/2011/06/campaign-finance-and-doctrinal-death.html>
>
> More to come.
>
> My New Republic piece is being edited and will be up shortly.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19712&title=News%20and%20Reactions%20on%20AZ%20Case&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     My Thoughts on Today’s Ruling are Coming
>     <http://electionlawblog.org/?p=19709>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19709> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> My initial thoughts will appear at /The New Republic/ and I’ll be linking.
>
> I actually see a couple of silver linings.
>
> Stay tuned….
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19709&title=My%20Thoughts%20on%20Today%E2%80%99s%20Ruling%20are%20Coming&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     Justice Kagan’s Response on the Website Point
>     <http://electionlawblog.org/?p=19706>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19706> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> “Finally, the Court remarks in a footnote that the Clean Elections 
> Commission’s website once stated that the ‘‘Act was passed by the 
> people of Arizona . . . to level the playing field.’ Ante, at 24, n. 
> 10. I can understand why the majority does not place much emphasis on 
> this point.Some members of the majority have ridiculed the practice of 
> relying on subsequent statements by legislators to demonstrate an 
> earlier Congress’s intent in enacting a statute. See, e.g., Sullivan 
> v. Finkelstein, 496 U. S. 617, 631–632 (1990) (SCALIA, J., concurring 
> in part); United States v. Hayes, 555 U. S. 415, 434–435 (2009) (ROBERTS,
> C. J., dissenting). Yet here the majority makes a much stranger claim: 
> that a statement appearing on a government website in 2011 (written by 
> who-knows-whom?) reveals what hundreds of thousands of Arizona’s 
> voters sought to do in 1998 when they enacted the Clean Elections Act 
> by referendum. Just to state that proposition is to know it is wrong.”
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19706&title=Justice%20Kagan%E2%80%99s%20Response%20on%20the%20Website%20Point&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     More Gold from J. Kagan <http://electionlawblog.org/?p=19702>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19702> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> “Pretend you are financing your campaign through private donations. 
> Would you prefer that your opponent receive a guaranteed, upfront 
> payment of $150,000, or that he receive only $50,000, with the 
> /possibility/—a possibility that you mostly get to control—of 
> collecting another $100,000 somewhere down the road? Me too.”
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19702&title=More%20Gold%20from%20J.%20Kagan&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     And this from J. Kagan <http://electionlawblog.org/?p=19699>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19699> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> “If an ordinary citizen, without the hindrance of a law degree, 
> thought this result an upending of First Amendment values, he would be 
> correct.”
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19699&title=And%20this%20from%20J.%20Kagan&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     The Dissent’s Ouch! <http://electionlawblog.org/?p=19696>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19696> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> Justice Kagan: “So they are making a novel argument: that Arizona 
> violated /their/ First Amendment rights by disbursing funds to /other/ 
> speakers even though they could have received (but chose to spurn) the 
> same financial assistance. Some people might call that /chutzpah/.”
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19696&title=The%20Dissent%E2%80%99s%20Ouch%21&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     Ouch! <http://electionlawblog.org/?p=19693>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19693> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> A fn. in CJ Roberts’ opinion: “Prior to oral argument in this case, 
> the Citizens Clean Elections Commission’s Web site stated that “ ‘The 
> Citizens Clean Elections Act was passed by the people of Arizona in 
> 1998 to level the playing field when it comes to running for office.’ 
> ” AFEC Brief 10, n. 3 (quoting 
> http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr. of 
> OralArg. 48. The Web site now says that “The Citizens Clean Elections 
> Actwas passed by the people of Arizona in 1998 to restore citizen 
> participa-tion and confidence in our political system.”
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19693&title=Ouch%21&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
> Comments Off
>
>
>     Arizona Free Enterprise Club’s Freedom PAC v. Bennett (McComish)
>     Decided <http://electionlawblog.org/?p=19690>
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19690> by Rick 
> Hasen <http://electionlawblog.org/?author=3>
>
> The opinion is here 
> <http://www.supremecourt.gov/opinions/10pdf/10-238.pdf>. It is 5-4, as 
> expected, striking down the matching funds provision.
>
> More to come after I’ve read and analyzed the 68 pages.
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19690&title=Arizona%20Free%20Enterprise%20Club%E2%80%99s%20Freedom%20PAC%20v.%20Bennett%20%28McComish%29%20Decided&description=>
> -- 
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org
>
>
> _______________________________________________
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> Law-election at department-lists.uci.edu
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