JLF legal expert explains how matching-funds provisions chill free speech

Friday Interview: Taxpayer-Financed Election Campaigns Critiqued


JLF legal expert explains how matching-funds provisions chill free speech
 
July 30, 2010

Daren Bakst

RALEIGH — North Carolina legislators left Raleigh this year without expanding the state’s system of taxpayer-financed election campaigns. But advocates pushed for expansion, and they’re likely to push the idea again in 2011. Before lawmakers left town, Daren Bakst, John Locke Foundation Director of Legal and Regulatory Studies, discussed the problems associated with so-called “public financing” of campaigns during an interview with Donna Martinez for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

Martinez: This just doesn’t sound right. Let me make sure I understand this. Would this mean that, for example, a progressive, a liberal person, would end up having to help fund the election campaign of a fiscal conservative?

Bakst: Yes. They’d have no choice but to be funding those campaigns.

Martinez: How does this work? What’s written into this bill?

Bakst: Well, what it does is it gives some local governments the option of using public financing, i.e., taxpayer financing, to subsidize candidates for office. So basically these candidates get a lump sum amount of taxpayer dollars to run their campaigns. You don’t have a choice about whether or not that taxpayer money, your taxpayer money, is going to candidates you oppose or people who support ideas that you find reprehensible.

Martinez: What would happen if, let’s say, that I’m a taxpayer and I’ve decided for whatever reason that I’m just not interested in politics? I’m not even going to vote.

Bakst: Well, you decide you don’t want to pay taxes, but that wouldn’t be a good idea, so you have no choice.

Martinez: Well, supporters say this would move us toward something they describe as a “clean election system.” They say this will help fend off corruption so that people don’t have to go out and raise a bunch of money on their own. Valid? Or not?

Bakst: Well, the problem is, first of all I want to clear up [that] this entire system is almost certainly unconstitutional. And I won’t get into the constitutional analysis, but two federal District Courts recently have struck down these types of taxpayer financing systems, and I think certainly this would be found unconstitutional.

Martinez: What is the basis — for those of us who aren’t attorneys — the basis for striking that down?

Bakst: Well, the way it works is that the systems try to equalize the funding between candidates. So, if Candidate A, who is not taking taxpayer dollars, spends, say, $100,000, and they set a threshold limit of $95,000, and if you spend beyond $95,000, any additional amount beyond that goes to the opponent. So if I spent $5,000 above a threshold amount, the candidate that takes the taxpayer dollars gets $5,000 to equalize the funding between the candidates.

But as a result, if I’m the candidate who knows that I’m going to give $5,000 to my opponent, what am I going to do? Well, I’m not going to engage in speech. And what it does is, that is exactly what happens. It chills free speech because you don’t want to engage in speech if you’re going to help your opponent. And that’s why, primarily, they are being struck down.

Martinez: There are some candidates, and I have read about them and heard about them, who really like this idea of publicly financed campaigns. They don’t want to go out and raise money. But raising money, the folks on the other side say, is part of the whole process of vetting the ideas in the marketplace.

Bakst: Well, when you say the other side, I think you mean my side.

Martinez: Exactly.

Bakst: Right, absolutely. You know this idea that fundraising is somehow evil or is bad, well, fundraising is an essential part of the political process. That is how we determine whether or not somebody is a legitimate candidate. That is part of the process. Of course a lot of candidates don’t want to raise money. Why should they have to try to actually get support when they can take your taxpayer dollars and, you know, they can sit around and drink pina coladas.

Martinez: Interesting. You know over in Chapel Hill in Orange County, they actually had a pilot program with public financing of local election campaigns. This took place last fall. There’s been some interesting reaction to how that worked. What’s your take on what happened in Chapel Hill?

Bakst: You know, proponents of taxpayer financing can’t get their stories right. On the state level, they argue, “Oh, see the program works because so many people participate in taxpayer financing programs.” Well, of course people participate because if you’re going to punish a candidate for not participating so severely, you have no choice but to participate.

But then in Chapel Hill, what happened was only a couple of candidates participated, and most of the candidates didn’t participate. So it was kind of tricky for them. “We can’t argue that a lot of candidates participated.” What they did was to show that the candidate that did participate won. Well, that doesn’t show that the system works because a candidate won. … It doesn’t do anything as it relates to taxpayer financing. As for politicians, of course they love it, also not only because they get to sit around and hang out and listen to Jimmy Buffett and drink pina coladas, they…

Martinez: Who wouldn’t want that?

Bakst: Right. Who wouldn’t want to do that? You know, what’s important is, if they’re incumbents, it helps them because if you have equalized funding between candidates, incumbents are always going to benefit because they have better name recognition. So the only way for the challenger to overcome that advantage is to spend more money.

And the idea that more money somehow is bad for the system is incorrect. We need money to kind of get the message out there. It’s not just spending money; it’s about getting the message out. People become more informed about the campaigns, not to mention these systems only deal with direct contributions to these campaigns. It doesn’t deal with independent expenditures or other types of spending. So it’s not decreasing the total amount of spending in these campaigns — only one type of spending, basically.

Martinez: This issue of public financing of campaigns at the local level is one that’s probably going to be coming up. So if I’m a citizen out in the community and I know that my local government entity is talking about this, what questions should I be prodding them to ask as they consider this?

Bakst: Mr. Politician, Mrs. Politician, do you believe in political welfare? Do you believe that you should be taking our hard-earned dollars away from critical issues such as safety — if it was on the county level, from schools, maybe roads — and instead giving it to you for your personal benefit so that you can run your campaign so you don’t actually have to get out and actually raise money on your own? Is that really what you think our tax dollars are for — for your benefit? That would be one good question. Also, do you respect the United States Constitution? Because almost certainly, these systems are unconstitutional.

Martinez: What we’re talking about is doing this at the local level, but North Carolina does engage in public financing of campaigns a couple of different ways. Tell us what they are. One is judicial races.

Bakst: Judicial races — appellate judicial races — and also three Council of State races, which means the Commissioner of Insurance and a couple of other positions.

Martinez: There is somewhat of a push, by some folks at least, to fund more Council of State campaigns this way.

Bakst: Absolutely. I mean, look, the goal for people that support clean elections is to have clean elections for every race. What’s interesting is that the State of Arizona, where clean elections kind of started — one of the states — there’s tons of corruption. Because what happens is people game the system and they will figure out ways to trigger these kind of funds that I was talking about — these matching funds — to the candidate. So I’ll run an ad that actually hurts a particular candidate as opposed to helping and gives the impression that it is helping. Then it triggers money to the other candidate that I actually support. So there’s lots of gamesmanship. There’s lots of corruption in those systems as well. So it’s not getting rid of corruption.

Money isn’t bad in the system. There are many other alternatives. And also, we need to do things that are actually consistent with the Constitution. The other thing — final point — taxpayers simply don’t support these systems. On the tax returns in the state, you … can check off a little box. Only about 7 percent or 8 percent of taxpayers have checked off that box to support public financing

http://www.carolinajournal.com/exclusives/display_exclusive.html?id=6670