Andy Parx, in a comment here yesterday, questioned my assessment of this week’s Supreme Court decision on Hawaii’s experiment in publicly financed elections passed by the legislature this year.

Any wrote:

I don’t think you’re reading this right Ian. It has nothing to do with full public financing laws- or for that matter any public financing laws The law in question tripled the campaign contribution limits for those who ran against self-financed candidates,. In the case of the law stuck down if a candidate spent more than $350,000 of their won money the contribution limits for individual contributions was tripled from $2,300 to $6,900.

Clean elections laws do not even allow for individual contributions to participating candidates. They simply give more money to the publicly financed candidate when the other candidate spends more. It sounds fully irrelevant to public financing.

Andy is correct that the decision dealt directly with a different situation involving campaign contribution limits.

However, reading through the decision again, it still seems to run directly counter to key elements of the Hawaii public financing plan. Here’s a simple outline of the Hawaii plan. Candidates who agree to forego acceptance of private contributions and rely instead on public funding would receive a basic amount to fund their campaign after meeting certain qualifications. If they are running against a privately funded candidate, and the amount spent by that candidate combined with the amounts spent by any independent committees exceeds the base amount of public funds, then two things happen. First, both the privately funded candidate and the independent committee will be subject to new and more detailed reporting and disclosure requirements, including having to report within 24 hours any contributions or expenditures over $1,000. Failure to properly meet these reporting requirements will subject them to the full range of penalties provided in the law. Second, the publicly funded candidate will become eligible for additional equalizing funds to match their privately-funded opponent.

Unfortunately, the Capitol computers are down this weekend, so I can’t get to the full language of the bill. But I think that describes it fairly.

Now look at this week’s Supreme Court decision, which involves a law providing aid to a candidate facing a wealthy opponent prepared to spend their own money. In this case, a wealthy candidate who ran in both 2004 and 2006, and sued after the FEC threatened to charge him with failing to file disclosures required because he was financing his own campaign. Remember, it’s the disclosure requirement, and possible penalties for failture to disclose, that was at the center of this case.

The court looked back to the landmark Buckley v. Valeo case for guidance.

In Buckley v. Valeo, 424 U. S. 1, the Court soundly rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech, holding that a “candidate . . . has a First Amendment right to . . . vigorously and tirelessly . . . advocate his own election,” and that a cap on personal expenditures imposes “a substantial,” “clea[r,]” and “direc[t]” restraint on that right, id., at 52–53. It found the cap at issue not justified by “[t]he primary governmentalinterest” in “the prevention of actual and apparent corruption of the political process,” id., at 53, or by “[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective
office,” id., at 54. [emphasis added]

The court then voiced the general principle that imposing burdens on some candidates in order to level the playing field between candidates of different financial abilities is “foreign to the First Amendment”, and rejected the federal laws increased contribution limits that gave a boost to candidates running against wealthy opponents spending their own fortunes.

Then the court turned to the question of disclosure requirements and reasoned that they are not necessarily unconstitutional, but must be strictly reviewed and require a compelling state interest to be found legal.

The remaining issue that we must consider is the constitutionality
of §319(b)’s disclosure requirements. “[W]ehave repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley,

In this case, because the underlying reason for disclosure–the leveling of the playing field–is unconstitutional, it follows that increased and burdensome disclosure requirements are also unconstitutional, as there is no compelling reason to require them.

The parallels with the Hawaii law are too stark to ignore. While the bill was being debated, I commented that the reporting and disclosure requirements, especially the reports required within 24 hours by non-publicly fund candidates as well as anyone making independent expenditures, would be a considerable burden in an actual campaign. They now leave the Hawaii experiment wide open to legal challenge. In my view, at least.

Okay, you can’t see Toby in this small photo. But click for a larger version, and you’ll see him waiting to greet us at the end of our morning walk. He’s sitting just at the end of our dead-end street and watching for our return.

Way to go, Mr. Toby!