June 23, 2018
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Supreme Court, Legislature set sights on Clean Elections program

By Kevin Miller, BDN Staff

AUGUSTA, Maine — The nation’s highest court heard arguments on a potential constitutional test case for public campaign financing programs on Monday, the same day Maine lawmakers considered a slew of bills to tweak, overhaul or even scrap the state’s Clean Elections program.

Programs that provide public money to political candidates — ostensibly to reduce the influence of big-money interest groups — have been under fire for months in Maine and around the country.

On Monday, U.S. Supreme Court justices took a hard look at provisions of Arizona’s program that gives extra cash to publicly funded candidates who are being outspent by their privately funded rivals and independent groups. Depending on the scope of the verdict, the case could have ramifications for a similar but not identical “matching funds” program in Maine’s public campaign financing system.

The court’s conservative-leaning justices, who have issued a string of decisions upending campaign finance laws in the past five years, appeared skeptical of the Arizona law because, in their view, it is designed to level the playing field for all candidates. The court has said such leveling often runs afoul of the First Amendment.

In Maine, meanwhile, a legislative committee took up seven bills dealing with the state’s public campaign financing system.

The proposals included an all-out repeal of the voter-approved Maine Clean Elections Act, measures to reduce the disbursements to some or all publicly financed candidates as well as several bills introduced in response to court challenges of the programs.

One measure, LD 843, would replace Maine’s “matching funds” program with a system wherein publicly financed candidates could raise money privately when they are being outspent by their traditionally financed opponents.

Another bill, LD 726, would essentially reduce by 20 percent the amount of Clean Elections money disbursed to candidates in 2012 compared with the 2010 election cycle.

The most sweeping bill under consideration by the Veterans and Legal Affairs Committee was LD 659, which would eliminate Maine’s public campaign financing system altogether.

Bill sponsor Rep. Aaron Libby, R-North Waterboro, said it was time for the state to revisit a program that he doesn’t believe has lived up to its promises.

“I say it is time to end welfare for politicians and remove it from the backs of taxpayers,” Libby told committee members.

But defenders of Maine’s public campaign financing system said the program has helped reduce big-money influence in state politics while providing a level playing field for candidates. The majority of legislative candidates take advantage of Clean Elections funding.

Another bill, LD 848, anticipates a potentially adverse ruling from the Supreme Court and directs the Maine Ethics Commission, which administers the Clean Elections program, to begin exploring ways to modify Maine’s system to comply with any ruling. Bill supporters said it would essentially give the commission — and therefore lawmakers — time to craft a bill ready for consideration in early 2012, which is an election year.

But Alison Smith, with the nonprofit organization Maine Citizens for Clean Elections, said she hopes that major revisions will not be necessary. Smith said that the way Maine calculates campaign spending and therefore distributes matching funds is different from Arizona’s law, so she hopes an adverse ruling would be narrowly written to apply only to Arizona.

“They are very similar, but they are not identical,” Smith said.

Back in Washington, several justices seized on the contention that the law discourages candidates and independent groups from spending money when they know it will result in more money going to the candidate they oppose.

“Just as a common-sense matter, if I’m someone with the capacity and will to make an independent expenditure, why don’t I think twice?” Justice Anthony Kennedy asked.

Bradley S. Phillips, the Los Angeles-based lawyer defending the law, said it encourages more competition by ensuring that publicly funded candidates have the chance to run credible races.

Phillips said the system is strictly voluntary. Candidates decide whether to take public funds, and if so, they agree not to raise any private money.

Some media reports on Monday suggested that the Supreme Court was poised to strike down key aspects of the Arizona law based on the line of questioning by the court’s more conservative justices as well as several recent decisions.

Among the recent rulings were last year’s Citizens United decision that removed most limits on election spending by corporations and organized labor, and a 2008 decision that voided the federal “millionaire’s amendment” to increase contribution limits for congressional candidates facing wealthy opponents.

Both decisions were ideologically split 5-4 votes in which the conservative justices prevailed.

Four other states in addition to Arizona — Maine, New Mexico, North Carolina and Wisconsin — have similar “trigger” provisions that affect some political races and could be vulnerable if the Supreme Court strikes down the Arizona provision. Another state, Connecticut, changed its law to eliminate its trigger after a federal appeals court struck it down.

A challenge to Maine’s public financing law also is pending in the courts, awaiting a verdict in the Arizona case. That court challenge of the Maine Clean Election Act matching funds system was filed by state Rep. Andre Cushing of Hampden, former state Rep. Harold Clough of Scarborough and the Respect Maine Political Action Committee

A decision in the U.S. Supreme Court case should come by summer.

The Associated Press contributed to this report.

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