US Supreme Court decision places cloud on publicly funded campaigns

This past Tuesday, all eyes were on some hotly contested primaries, but there was also a decision by the United States Supreme Court that may have an impact on publicly funded campaigns across the country, Hawaii included. The Supreme Court temporarily blocked Arizona from distributing matching campaign funds to publicly funded candidates. Here's a link to the CBS News story.

Lower courts are split on the constitutionality of Arizona's matching fund program. In January 2010, U.S. District Court Judge Roslyn Silver ruled that matching funds discourage privately funded candidates from raising or spending donations because that would trigger the matching government funds for their opponents. That constituted an impact on free speech. The Ninth Circuit Court of Appeals, however, disagreed and ruled that the impact to free speech was minimal. This week's decision serves to stop Arizona's Clean Elections program at least until the Supreme Court determines whether to hear the opponent's full appeal.

Tuesday's decision only affects Arizona, but Connecticut and Maine have similar campaign matching funds programs. What does this mean in Hawaii?

For the 2010 election, the County of Hawaii was given the authority by the legislature to conduct a pilot program using matching or equalizing funds for the Hawaii County Council races. The bill, HB661 became law as Act 244 without the Governor's signature. It established the pilot program for Hawaii County only, and for three election cycles starting with the 2010 election.

In 2009, HB345 proposed that the pilot program be postponed, to start with the 2014 election. The primary reason cited was a concern over funding sufficiency. The Campaign Spending Commission, while not opposed to the bill, called attention to the constitutionality question and recommended that the equalizing funding section be removed, citing the case in Arizona. They stated:

"Notwithstanding the complexities in the law discussed above, the Commission is recommending removal of the equalizing fund provisions based upon In re McComish v. Brewer, No. 2:08-cv 1550, Order (Aug. 29,2008). The Court, therein, determined that Arizona's equalizing fund provision "violates the First Amendment of the U.S. Constitution." A copy of the Order is attached to our testimony. The Commission submits that the Legislature should take proactive
action, rather than passively await possible litigation involving equalizing funds."

Here is their full testimony.

The bill which sought to postpone the pilot program passed the House but stalled in the Senate.

At this time, the pilot program for Hawaii County Council races is going forward, but the future of the program is uncertain until the U.S. Supreme Court takes further action.