On November 29 the U.S. Supreme Court agreed to hear McComish v. Bennett, a case in which the NYU School of Law’s Brennan Center for Justice will defend one of Arizona’s public campaign financing laws on behalf of its client, the Arizona Clean Elections Institute.

The case will likely be a high-profile one, similar to Citizens United v. Federal Election Commission, in which the Supreme Court’s controversial campaign finance ruling relaxing limitations on corporate campaign spending made waves among both legal experts and ordinary citizens across the country. The Supreme Court has not ruled in a public campaign financing case since Buckley v. Valeo (1976).

The Brennan Center, along with its pro bono co-counsel, Munger, Tolles & Olson, is arguing for the constitutionality of a provision that extends “trigger matching funds” to candidates who accept limited public funding in lieu of unlimited private fundraising. The law is intended to minimize the role of money in elections by eliminating the advantage of renouncing public funding in favor of tapping private sources.

If a candidate who refuses public funds then spends more than a certain amount campaigning, or if an independent group’s spending against a candidate exceeds a given level, the opposing candidate who accepted limited state funding automatically receives additional public money to offset the financial imbalance between the two sides. The plaintiffs argue that the trigger matching funds restrict the speech of privately financed candidates and independent groups, thus violating the First Amendment. (Current law places no limits on how much money a candidate can raise after opting out of public funds.)

“The Arizona Clean Elections system, in effect for over a decade, helped move the state beyond egregious corruption and recurrent scandal,” said Michael Waldman ’87, the Brennan Center’s executive director. “This law has boosted speech while combating corruption. The trigger funds provision, a carefully considered element of this law, was upheld unanimously by the Court of Appeals. We believe this provision is constitutionally sound, and advances First Amendment values rather than burdening them, as we will argue before the Supreme Court.”

Students in the Brennan Center Public Policy Advocacy Clinic, including Laura Moy '11 and Marcus Williams '12, have been working on the case, which is expected to be argued in March 2011. As part of the center's Campaign Finance Reform Project, Moy and Williams have done editing and research for filings in support of states' clean election laws. Apart from their contributions to the Brennan Center's litigation efforts, the two students are drafting a comprehensive report on the impact, efficacy, and benefits of public financing programs.

"This year's election was the most expensive in our nation's history," Moy said. "A lot of people don't realize that, as consumers, we are paying for a lot of it. We pay companies for their goods and services, and they turn around and spend money on political goals that we may or may not agree with."

Posted on December 2, 2010