1.
Aidan
Barrett
Media
Law
COM
698
Publicly
Financed
Campaigns

2.
I.
Introduction
The
idea
of
special
interest
groups
and
faceless
corporations
buying
our
politicians
has
been
a
consistent
worry
among
Americans
since
the
2010
Citizens
United
Supreme
Court
decision.
Although
that
decision
seemed
to
bring
a
huge
amount
of
public
attention
to
the
issue
of
campaign
finance,
it
was
certainly
not
the
first
case
to
deal
with
it.
As
the
American
public
became
increasingly
worried
about
the
integrity
of
elections,
publicly
financed
campaigns
began
to
be
seen
as
a
way
to
combat
potential
corruption.
The
donations
given
to
politicians
from
wealthy
individuals,
corporations,
special
interest
groups,
and
Political
Action
Committees
are
considered
political
speech
by
the
Supreme
Court,
and
have
not
only
been
protected,
but
older
cases
regarding
limits
and
restrictions
have
been
dismantled.
But
this
type
of
speech,
like
every
other
type
of
speech,
can
be
countered,
or
ignored
by
parties
who
do
not
want
to
hear
it.
Political
speech
is,
in
its
most
basic
form,
advertising
for
a
specific
candidate,
or
a
political
party.
In
a
perfect
world,
this
type
of
speech,
like
the
majority
of
other
advertising
would
be
ignored
by
the
public.
However,
this
is
not
a
perfect
world,
and
political
speech
by
corporations,
the
extremely
wealthy
and
the
like
should
not
go
unchecked.
Since
the
early
2000’s,
it
has
become
harder
to
pass
laws
which
limit
the
amount
an
individual
or
corporation
can
contribute,
as
these
contributions
are
seen
as
protected
political
speech.
Limiting
contributions
is
clearly
not
the
way
to
go,
but

3. by
incentivizing
small
donations
by
regular
citizens
throughout
the
country,
the
voices
of
the
corporations
could
be
matched.
Throughout
this
paper,
I
will
give
a
brief
breakdown
of
the
cases
and
laws
that
have
helped
shift
campaign
contributions
into
the
realm
of
political
speech,
as
well
as
the
potential
benefits
a
small
donor
single
or
multiple
matching
system
could
provide
to
our
current
political
system.
II.
History
According
to
the
Federal
Election
Commission,
the
Federal
Election
Campaign
Act
was
created
in
1971.
This
act
required
full
and
detailed
disclosure
of
campaign
contributions.
FECA
also
placed
limitations
on
individual
campaign
contributions
as
well
as
campaign
expenditures.
For
a
brief
period,
the
act
also
limited
spending
on
media
advertisements,
but
this
aspect
was
quickly
repealed.1
FECA
also
provided
an
exception
to
both
the
Tillman
Act
as
well
as
the
Taft-­‐Hartley
Act
of
1947.
These
acts
banned
direct
contributions
of
corporations
and
labor
unions
to
influence
Federal
elections.1
This
exception
allowed
for
the
creation
of
political
action
committees.
Corporations
could
now
use
their
own
treasury
funds
to
create
committees
to
solicit
donations.
The
donations
gathered
could
now
go
towards
influencing
Federal
elections.1
In
addition
to
FECA;
the
1971
Revenue
Act
was
also
established.
This
act
enabled
individual
candidates
–
as
opposed
to
their
political
party
as
a
whole
–
to
receive
funds
that
were
gathered
through
the
dollar
check
off
box
on
Federal
income
tax
returns.2
These
boxes
were
checked
voluntarily
by
individuals
filing
their
tax
returns.
In
order
for
the
candidate
or
party
to
receive
funding,
they
first
must
have

4. met
certain
requirements.
Currently,
some
of
these
requirements
include:
limiting
Primary
Election
Campaign
spending
to
$10
million,
limiting
campaign
spending
to
$200,000
per
state,
and
limiting
personal
spending
to
$50,000.2
Once
the
FEC
has
determined
the
eligibility
requirements
are
met,
the
Treasury
Department
will
make
the
actual
payment.2
The
money
comes
from
the
Presidential
Election
Campaign
Fund,
which
is
made
of
the
dollars
checked
off
from
the
Federal
income
tax
return.2
The
Federal
Election
Campaign
Act
was
challenged
very
soon
after
it
was
created.
The
1976
Supreme
Court
decision
in
Buckley
V.
Valeo
nullified
certain
aspects
of
the
act.
Senator
James
L.
Buckley
(NY)
filed
suit,
claiming
the
limitations
on
contributions
and
expenditures
violated
the
First
Amendment.
The
Court
looked
at
both
of
these
issues,
and
made
two
decisions.
First,
the
limitations
placed
on
contributions
protected
the
“integrity
of
our
political
system
or
representative
government.”3
The
Court
also
found
that
limitations
on
campaign
contributions
were
one
of
the
“primary
weapons
against
the
reality
or
appearance
of
improper
influence
stemming
from
the
dependence
of
candidates
on
large
campaign
contributions.”4
Because
of
these
compelling
reasons,
the
court
found
contribution
limitations
did
not
violate
the
First
Amendment.
The
limits
placed
on
campaign
expenditures
on
the
other
hand,
were
found
to
be
in
violation
of
the
First
Amendment,
and
acted
as
“direct
and
substantial
restraints
on
the
quantity
of
political
speech.”4
The
decisions
in
Buckley
v.
Valeo
acknowledged
that
although
financial
contributions
were
considered
political
speech,
they
could
still
be
limited
in
order
to

5. preserve
the
integrity
of
the
democratic
process.
However,
as
time
passed,
and
the
courts
became
more
enamored
with
the
idea
of
money
equals
speech,
their
limitations
and
regulations
changed.
Just
as
the
Federal
Election
Campaign
Act
was
challenged
in
court
very
soon
after
it
was
enacted,
the
same
fate
followed
the
Bipartisan
Campaign
Reform
Act
of
2002.
This
act
contained
what
was
commonly
referred
to
as
the
“Millionaire’s
Amendment.”
This
section
did
not
strictly
limit
the
amount
of
personal
funds
a
candidate
could
use
in
their
campaign,
however,
it
did
establish
the
Opposition
Personal
Fund
Amount
(OFPA)
at
$350,000.5
If
the
OFPA
was
triggered,
the
self
funded
candidates
opponent
would
be
eligible
to
receive
contributions
that
were
three
times
the
amount
of
the
usual
limit
(the
usual
limit
is
#2,100,
if
the
OFPA
was
triggered,
the
candidate
would
be
able
to
receive
contributions
of
$6,300.)
In
addition
to
these
increased
contribution
limitations,
this
candidate
would
also
be
able
to
receive
party
coordinated
expenditures
that
exceeded
the
original
limits.6
The
Millionaire’s
Amendment
was
challenged
by
Jack
Davis,
a
wealthy
candidate
running
for
a
seat
in
New
York’s
26th
District.6
The
case
was
first
argued
in
the
New
York
District
Court.
Davis
argued
based
on
the
precedents
set
by
Buckley;
limitations
on
candidate
expenditures
were
subject
to
more
scrutiny,
because
they
were
not
as
much
as
a
threat.6
The
lower
court
rejected
Davis’
case,
saying
that
the
Millionaire’s
Amendment
did
not
restrict
anyone’s
political
speech,
but
rather
corrected
an
imbalance
between
the
ultra
wealthy
and
everyone
else.6
The
lower
court’s
decision
also
made
it
very
clear
that
Davis
could
have
accepted
the
public

6. funds
which
were
available
to
his
opponent.
If
both
candidates
had
been
using
these
funds,
there
would
not
have
been
an
issue.
After
this
decision,
the
case
was
brought
up
to
the
Supreme
Court,
who
had
a
much
different
ruling.
The
Supreme
Court
ruled
that
OPFA
triggers
were
unconstitutional.
A
wealthy
candidate
should
not
have
to
be
worried
about
whether
their
own
expenditures
will
affect
the
campaign
contributions
of
their
opponent.
“According
to
the
court,
the
only
compelling
interest
that
can
justify
restrictions
on
campaign
expenditures
are
the
prevention
of
corruption,
or
the
prevention
of
the
appearance
of
corruption.”5
Also,
the
court
said
the
reliance
on
personal
funds
was
a
factor
in
reducing
the
risk
of
corruption.
If
a
candidate
is
relying
on
their
own
wealth,
hypothetically,
there
will
be
no
risk
of
quid
pro
quo
corruption.6
In
addition
to
this
decision,
the
court
also
went
on
to
say
that
acts
like
the
BCRA,
and
in
particularly,
the
Millionaire’s
Amendment
had
no
place
being
brought
up
in
Congress.
“Equalizing
elections
opportunities
for
candidates
with
different
amounts
of
money
is
not
a
permissible
congressional
purpose.”6
From
recent
decisions,
it
seems
as
if
the
Supreme
Court
is
actively
trying
to
keep
big
money
in
politics.
The
idea
of
activating
OPFA
triggers
when
a
wealthy
candidate
pours
a
large
amount
of
their
own
money
into
the
campaign
seems
completely
reasonable.
It
seems
as
if
there
is
no
restriction
on
the
wealthy
candidate;
they
can
continue
to
put
as
much
of
their
own
money
into
the
campaign
as
they
like.
The
OPFA
triggers
would
have
simply
help
offset
the
imbalance.
As
in
the
real
world,
the
people
who
talk
the
most
aren’t
always
right.
OPFA
triggers
seem

7. like
a
way
non-­‐restrictive
way
to
amplify
the
voice
of
someone
who
isn’t
capable
of
speaking
loudly.
The
Arizona
Free
Enterprise
Club
Freedom
Club
v.
Bennett
was
similar
to
the
Davis
case.
This
case
dealt
with
Arizona’s
public
matching
funds
program
which
was
put
in
place
in
1998.7
This
program
would
give
an
initial
sum
of
money
to
any
candidate
willing
to
accept
public
funding.
If
the
publicly
funded
candidate’s
opponent
starting
to
vastly
outspend
them,
more
funds
would
be
allocated,
in
order
to
make
sure
both
candidates
had
equal,
or
close
to
equal
funding.7
The
case
was
decided
in
2010,
and
had
a
very
similar
outcome
to
the
Davis
case.
The
court
ruled
against
the
Arizona
law.
Chief
Justice
Roberts
wrote
the
following
for
the
majority
opinion:
“Arizona’s
matching
funds
scheme
substantially
burdens
political
speech
and
is
not
sufficiently
justified
by
a
compelling
interest
to
survive
the
First
Amendment
scrutiny.”7
The
dissenting
opinion
included
the
following
passages:
“The
First
Amendment’s
core
purpose
is
to
foster
a
healthy,
vibrant
political
system
full
of
robust
discussion
and
debate.”7
Justice
Kagan
added:
“Nothing
in
Arizona’s
Anti-­‐Corruption
statute,
the
Arizona
Citizens
Clean
Elections
Act
violates
this
constitutional
protection.
To
the
contrary,
the
act
promotes
the
values
underlying
both
the
First
Amendment
and
our
entire
Constitution
by
enhancing
the
opportunity
for
free
political
discussion
to
the
end
that
government
may
be
responsive
to
the
will
of
the
people.”7

8. With
the
previous
cases,
it
seems
as
though
the
justices
who
think
these
fund
matching
programs
limit
political
speech
are
concerned
mainly
with
the
political
speech
of
wealthy
individuals.
The
dissenting
justices
on
the
other
hand,
seem
to
be
looking
out
for
the
political
system
as
a
whole.
McCutcheon
v.
FEC
is
another
recent
case
that
seems
to
follow
the
same
line.
Shaun
McCutcheon
was
a
wealthy
businessman
from
Alabama.
As
of
2012,
he
had
already
donated
over
$33,000
to
16
different
Federal
candidates,
as
well
as
$25,000
in
non-­‐candidate
contributions.8
He
planned
on
donating
to
12
additional
candidates;
this
donations
would
have
brought
him
over
the
aggregate
limit
for
contributions.8
These
aggregate
limits
had
been
in
place
since
the
Buckley
v.
Valeo
ruling.8
Along
with
the
Republican
National
Committee,
McCutcheon
filed
suit,
with
the
intention
of
revisiting
the
Buckley
precedents.8
The
case
was
brought
to
the
Supreme
Court,
and
decided
in
April
of
2014.
The
court
ruled
the
aggregate
limits
to
be
in
violation
of
the
First
Amendment.8
This
“removes
the
overall
cap
on
individual
contributions,
it
does
not
affect
the
Act’s
base
limits
on
individual
contributions
to
federal
candidate
campaigns,
PACs
or
party
committees.”8
This
decision
also
gave
donors
“the
same
right
to
influence
officials
as
do
the
constituents
those
officials
are
elected
to
represent.”8
Justice
Thomas
voted
on
the
side
of
the
majority,
but
offered
his
own
opinion
in
which
he
said
he
wanted
to
abolish
all
campaign
contribution
limits,
because
“limiting
the
amount
of
money
a
person
may
give
to
a
candidate
does
impose
a
direct
restraint
on
his
political
communication.”8

9. Justices
Breyer,
Ginsburg,
Sotomayor
and
Kagan
all
dissented.
They
argued
the
ruling
had
“created
a
loophole
that
will
allow
a
single
individual
to
contribute
millions
of
dollars
to
a
political
party
or
to
a
candidate’s
campaign.
Taken
together
with
Citizens
United
v.
FEC,
today’s
decision
eviscerates
our
nation’s
campaign
finance
laws,
leaving
a
remnant
incapable
of
dealing
with
the
grave
problem
of
democratic
legitimacy
that
those
laws
were
intended
to
solve.”8
III.
Potential
of
Public
Financing
Throughout
this
paper,
there
have
been
examples
of
campaign
finance
reform
that
was
ruled
unconstitutional
because
it
either
limited,
or
chilled
one
candidate’s
right
to
political
speech.
Before
these
rulings,
an
independently
wealthy
candidate
would
have
been
fearful
of
spending
too
much
of
their
own
money,
as
that
would
enable
their
opponent
to
receive
more
funding
as
well.
Now,
with
these
rulings,
wealthy
candidates
have
nothing
to
fear.
But
what
would
happen
if
all
candidates
were
limited
to
public
funds?
Would
political
discourse
flourish?
Would
the
voting
masses
of
America
be
more
engaged
with
the
political
process,
if
a
portion
of
their
tax
dollars
were
going
to
funding
candidates?
Although
forced
public
financing
will
most
likely
never
happen,
there
have
been
attempts
at
making
it
more
influential.
As
Justice
Brandeis
said,
“It
is
one
of
the
happy
incidents
of
the
Federal
system
that
a
single
courageous
state
may,
if
its
citizens
choose,
serve
as
a
laboratory;
and
try
novel
social
and
economic
experiments
without
risk
to
the
rest
of
the
country.”

10. New
York
City
has
enacted
the
Small
Donor
Multiple
Match
System.
With
this
system
in
place,
the
city
puts
$6
for
each
of
the
first
$175
that
a
city
resident
contributes.9
According
to
the
report
on
this
system,
titled
Donor
Diversity
Through
Public
Matching
Funds,
“matching
funds
heighten
the
number
and
role
of
small
donors
in
city
elections.”9
This
multiple
matching
system
has
strengthened
the
connections
between
the
candidates
and
their
constituents.
By
receiving
more
money
from
ordinary
people,
the
candidates
are
forced
to
listen
more
closely
to
their
concerns.
At
the
same
time,
donors
know
that
their
small
donations
are
being
amplified,
which
gives
them
a
better
sense
that
their
contributions
matter.
The
matching
system
is
only
in
place
within
city
elections,
with
the
goal
of
getting
a
similar
measure
passed
for
State
elections.
According
to
the
report,
“small
donors
who
gave
money
to
a
city
council
candidate
came
from
89%
of
the
city’s
census
block
groups
(CPGs).
By
contrast,
the
small
donors
in
state
assembly
elections
came
from
only
30%
of
the
city’s
CPGs.”9
Detractors
from
this
system
would
say
that
the
difference
in
donations
can
be
summed
up
by
people
generally
being
more
interested
in
local
elections.
However,
“As
a
prior
Brennan
Center
study
found,
small
donor
participation
was
40%
greater
in
2009
that
in
1997,
the
last
election
before
the
single
match
system
transformed
to
a
multiple
match
system…In
other
words,
before
the
adaptation
of
the
multiple
match
system
city
council
small
donor
participation
rates
were
lower
than
they
are
now.”9
The
New
York
City
system
was
able
to
generate
huge
amounts
of
interest
in
local
politics,
because
it
gave
a
voice
to
the
people
who
feel
that
they
are
never

11. heard.
It
never
restricted
the
voice
of
the
wealthy,
it
just
let
other
people
join
the
conversation.

12. Works
Cited
1.
The Federal Election Campaign Laws: A Short History. (n.d.). Retrieved April 1, 2015, from
http://www.fec.gov/info/appfour.htm
2.
Public Funding of Presidential Elections. (2015, January 1). Retrieved April 1, 2015, from
http://www.fec.gov/pages/brochures/pubfund.shtml
3. BUCKLEY v. VALEO. The Oyez Project at IIT Chicago-Kent College of Law. 22 April
2015. <http://www.oyez.org/cases/1970-1979/1975/1975_75_436>.
4. Buckley v. Valeo. (n.d.). Retrieved April 1, 2015, from
http://www.fec.gov/law/litigation_CCA_B.shtml
5. Earl, J. (2009). Davis v. FEC: The First Amendment Rights of a Wealthy Candidate. Duke
Journal of Constitutional Law and Public Policy Sidebar, 4:89.
6. Davis v. FEC. (n.d.). Retrieved April 1, 2015, from
http://www.fec.gov/law/litigation_CCA_D.shtml
7. ARIZONA FREE ENTERPRISE CLUB FREEDOM CLUB PAC v. BENNETT. The
Oyez Project at IIT Chicago-Kent College of Law. 22 April 2015.
http://www.oyez.org/cases/2010-2019/2010/2010_10_238
8. McCutcheon v. FEC. (2014, April 1). Retrieved April 1, 2015, from
https://www.brennancenter.org/legal-work/mccutcheon-v-fec
9. Genn, E., Iyer, S., Malbin, M., & Glavin, B. (2012, May 14). Donor Diversity Through Public
Matching Funds. Retrieved April 1, 2015, from http://www.brennancenter.org/publication/donor-
diversity-through-public-matching-funds