The big news this week is the U.S. Supreme Court striking down Arizona’s matching funds provision from Clean Elections. The ruling could be a game-changer for some who will seek legislative and statewide elected positions. But it also begs the question: What will we really be missing?
On June 27, Chief Justice John Roberts atom-bombed the arguments put forth by defenders of matching funds. Roberts sternly observed that paying hard-earned money to influence politics is annoying and counterproductive if the government will turn around and give your adversaries free money. In contrast, Justice Elena Kagan mourned the loss of matching funds, which she said are needed to steer candidates into the bright, special-interest-free world of Clean Elections.
Still absent from the opinions is an understanding of how an election season, in all of its matching funds glory, is carried out. The last season to feature contests for all legislative and statewide offices with available matching funds occurred in 2006.
Much of the funds were distributed by the Citizens Clean Elections Commission, which acted upon so-called “trigger reports” filed by traditionally funded candidates who surpassed set spending or fundraising levels. The headaches usually occurred, but weren’t limited to, the statewide races, like the run for governor.
The ideal scenario for the campaigns was to generate one of two outcomes: a damaging headline against a competitor or a check from the CCEC. The campaigns would pore through opponents’ campaign finance reports for inconsistencies and then file a complaint with the CCEC that accused their competition of either illegally entering into campaign debt, coordinating with independent expenditure groups or benefitting from an in-kind contribution — a gift or something of value to a campaign other than money, like consulting services or an advocacy group putting in a good word about a candidate to its members.
The mere filing of the meritless or impossible-to-prove complaints generated headlines, but getting a matching funds check required evidence — usually copies of mailed political advertisements or similar proof of a political campaign.
So-called “slate” mailers promoting three or more candidates sent by political parties wouldn’t trigger matching funds — unless the CCEC made the call that all or at least a portion of the ad degraded opposition candidates or went a little too far painting their own office seekers as the good guys.
It was not uncommon for commissioners to determine, for example, that one-third of a mailer crossed the bright-but-blurry line, and thus triggered matching funds equaling one-third of the total cost of the mail pieces. How about one-third of one-half of the value, you know, in the case that the offending message was printed on only one side of the mailer?
Other decisions settled whether independent ads were indeed issue ads designed to promote issues (not matchable) or thinly veiled efforts to promote or attack candidates (matchable). This type of spending, miraculously, seems to occur primarily during election season, and not when the Legislature is actually in session tinkering with public policy, leaving CCEC commissioners with the responsibility of considering the purpose, timing and context of the ads to determine whether matching funds were appropriate.
The commission would also be asked to play “The Price is Right” with things as seemingly simple as emails, although the emails in question could have been sent to tens of thousands of recipients. That’s voter contact minus the printing costs, postal fees or a hit to the travel budget. Campaigns could also find themselves explaining who among their campaign was a volunteer, a paid staffer or a volunteer who used to be a paid staffer.
Questions about debt incursion, a no-no for publicly funded campaigns, prompted commission investigations and discussions on accounting (cash or accrual), as well as theoretical questions on when a “debt” actually becomes a debt.
No high-stakes political equation would be complete without bickering lawyers. Their job usually consisted of undermining or supporting the recommendations the CCEC executive director (also an attorney) had given to the agency’s appointed commissioners.
The commissioners, being pulled in opposing directions, put on their do-it-yourself attorney hats and attempted to wade through decades of complex campaign finance case law conclusions when deciding whether to award matching funds. To add an even greater degree of difficulty to the mix, the First Amendment by and large prevents the government from deciding exactly how, what and when a campaign can do with its money.
Needless to say, these attorneys don’t grow on trees — nor did they flock to powerless challengers out of a desire to contribute to the marketplace of ideas.
But they sure helped independent “special interest” groups bend over backward to influence elections without triggering avalanches of matching funds. And they helped a candidate legally hold hands with the same old political parties, special interests and power brokers — all of which are needed to qualify to receive public funding in the first place.
Clean Elections and matching funds haven’t changed politics. All that has changed is the currency.
— Christian Palmer is the associate editor of the Yellow Sheet Report.