What Common Cause Should Have Written
Several weeks ago, I wrote about my experience of hearing oral arguments in the US Supreme Court case McComish v. Bennett, which challenges a key component of publicly financed campaign systems, matching grants. As Connecticut is one of a handful of states experimenting with such a system, the constitutionality of this provision is of particular significance to us here in the Constitution State.
Dr. Bilal Dabir Sekou, the Chair of the Board of Directors of Common Cause in Connecticut, responded with a piece entitled Citizens Election Program Best Anti-Corruption Measure, which was published by CT News Junkie on April 15. Professor Sekou’s rebuttal, however, was mostly a serving of the usual Common Cause talking points, reheated and slopped on the plates of readers rather than a particularly substantive contribution to the dialogue.
In an effort to promote more effective debate about the issue, I’ve taken the liberty of writing the response Dr. Sekou should have.
Of the more than 4,000 cases that make their way to the United States Supreme Court each year, less than 200 actually appear before the nine black-robed Justices. In this context, it is significant to Connecticut that the Court recently heard oral arguments in the case McComish v. Bennett.
At issue is a key element of publicly funded campaign systems called matching grants. In Connecticut’s system, the Citizens’ Election Program (CEP), these funds made up a small percentage of funds dispensed in 2008 and 2010 but they serve a big purpose.
CEP only works when candidates voluntarily choose to participate and in 2010, 304 of the 450 eligible candidates did. But there are some candidates who could raise significantly more than the program normally provides, creating powerful incentives for other candidates to opt out of the program. Unless there is a mechanism to address this reality, the entire program will become an exercise in futility.
Matching grants, in which participating candidates receive more money to counter the opt-out candidate’s spending, are that mechanism. They help balance spending but they are more powerful as a deterrent to opting out of the system.
In McComish, the question is whether these funds are an unconstitutional restriction on the free speech rights of nonparticipating candidates. It is an important one. The grants have a coercive effect on candidates; indeed, that is their purpose. But does an incentive to participate constitute a deterrent to speak when choosing not to participate? At Common Cause of Connecticut, we argue that it is not.
As Supreme Court Justice Elena Kagan noted in her questions during argument, the end result is more speech, not less. How could a deterrent produce more speech? By definition, it cannot.
Though significant to the future of publicly funded campaign systems across the country, including in Connecticut, the potential ramifications are limited in the short run. As even Mr. Fahle acknowledged, the General Assembly made modifications to CEP in August 2010 that render the McComish case a moot point in Connecticut.
The McComish ruling will, however, certainly shape future reforms of CEP. If matching funds are not constitutional, other mechanisms will need to be contrived to incentivize participation in the publicly funded system.
There was a time when elected officials could be trusted to avoid potentially insidious influences invited in by campaign fundraising, and in fairness, most still can be. But for the few that can’t be, publicly funded campaigns force a level of forthrightness on candidates we might otherwise recognize to be unpalatable.
Candidates, like all people, are complex actors that make decisions on the basis of incentives. That such incentives could be found unconstitutional in McComish would hamper future efforts to reform this system and make it more worthy of our trust in the future.
