Just moments after the big clock overhead showed 10am, the Justices of the US Supreme Court took their seats on the highest court in America on Monday of this past week to hear a case with major significance for Connecticut. Hanging in the balance is a critical component of the state’s publicly funded campaign financing program that shelled out $27.1 million during the 2010 election cycle.
The nine heard oral arguments in the case McComish v. Bennett, which emerged from the courts in the Ninth Circuit Court after a contentious election season in the Grand Canyon State. At issue in the matter was a debate about whether a key mechanism of the government-funded campaign finance system, matching funds, are constitutional.
Here is how it works. Connecticut candidates for state offices, like Governor or State Representative, have to choose between opting in or out of the publicly funded system, entitled the Citizens’ Election Program (CEP). Participating candidates agree to abide by certain fundraising and expenditure rules and in exchange, the state provides a generous grant to pay for their campaign.
A potential flaw in the program arises when the opt-in candidate is pitted against a candidate who opts out of the program. Unencumbered by the additional limits of CEP, a non-participating candidate could raise and spend more money than that provided by the publicly funded system, thus gaining a competitive advantage over the opt-in candidate and creating a significant disincentive to participation in CEP. The program addresses this concern by giving a matching grant to an opt-in candidate.
This raises a constitutional dilemma for the nonparticipating candidate. In the zero sum context of politics in which one candidate’s speech necessarily does harm that of the opposing candidacy, does a system in which one candidate’s speech triggers the speech of the opponent have a chilling effect on the former’s protected political speech? By definition, it must do so.
Justices Sonia Sotomayor, Ruth Bader Ginsburg, and particularly Elena Kagan seemed skeptical, with Justice Kagan noting that the net effect of the law is more speech, rather than less. But Chief Justice Roberts assailed this notion by wondering how the amount of speech that did not happen could be quantified. Justices Scalia, Kennedy, and Alito seemed to agree with Roberts. Justice Clarence Thomas, as is his custom, asked no questions.
Both the transcript and the audio recording of the oral arguments is available on the US Supreme Court’s website.
The Court is expected to hand down the ruling in the case in June as it wraps up its spring term.
In Connecticut, matching funds were already ruled unconstitutional by the Second Circuit Court back in July 2010, though the ruling came after matching funds were already dispersed for the primary contests. In the immediate aftermath of the August 10, 2010 elections, the General Assembly circumvented the federal court’s ruling by doubling the general election grant for participating gubernatorial candidates, though there was only one: now-Governor Dannel P. Malloy. If the Supreme Court invalidates matching grants, maintaining the incentive to participate in CEP may mean adopting the same strategy for all candidates.
As government increases its involvement in the elections that control it, the balancing act between the power of government and the rights of the electorate must constantly be recalibrated. With this perspective in mind, the McComish case will provide important guideposts as to how the relationship between government and elections is defined.
Heath W. Fahle is the Policy Director of the Yankee Institute for Public Policy, a conservative think tank in Connecticut based on the campus of Trinity College. The Yankee Institute filed an amicus brief in the case.
