US Supreme Court Brief of Amici Curiae Maine Citizens For Clean Elections

US Supreme Court Brief of Amici Curiae Maine Citizens For Clean Elections

December 21, 2010

Democracy Program Director Brenda Wright and Counsel Lisa Danetz co-authored (with John Brautigam) the following amicus brief.  It was filed in February 2011.

Enacted by the citizens of Maine through a voter initiative, the Maine Clean Election Act (MCEA) has offered a full public funding option to candidates for state offices for the past decade. That option provides candidates who demonstrate a threshold level of public support with an initial distribution of public funds in lieu of private contributions. To encourage participation in the system, the program includes a trigger provision allowing additional funds in more highly contested elections, subject to a cap, under a formula that takes into account an opponent’s spending and spending by independent sources.

Full public financing has invigorated the electoral marketplace in Maine. Candidates across the political spectrum have opted into the public financing program in large numbers, reflecting strong and widespread public support for an electoral system that frees candidates from dependency on private donations and thus deters the threat and appearance of quid pro quo corruption.

The record in Maine refutes any contention that the triggered matching funds work to “chill” fundraising or spending by privately financed candidates or independent sources. Analysis of spending patterns in Maine elections from 2002 through 2010 shows no empirical support for the conjecture that Maine’s trigger provisions deter candidates from raising and spending as much as they can.

Finally, the “fear of speech” theory that petitioners advance in this case is fundamentally at odds with the purpose of the First Amendment, which seeks to “secure the widest possible dissemination of information from diverse and antagonistic sources.” Buckley v. Valeo, 424 U.S. 1, 49 (1976). In the political marketplace contemplated by the First Amendment, an exchange of diverging viewpoints is to be encouraged, not feared – and the supplemental funds foster rather than inhibit that exchange. The First Amendment therefore should not be twisted into an instrument that shields candidates from other candidates’ speech. Instead, the public financing provisions at issue here are fully constitutional as a means to enhance and facilitate the “‘uninhibited, robust, and wide-open’ public debate” that the First

Amendment was designed to ensure. Id. at 93 n.127.

  • Maine’s successful experience with full public financing of elections confirms that public funding furthers, not abridges, pertinent First Amendment values.
  • Maine’s public financing program has attracted widespread candidate participation freeing officeholders from indebtedness to private donors and deterring corruption.
  • Public financing has enhanced the competitiveness of Maine elections
  • Public financing in Maine has increased candidates’ engagement with voters and citizens’ participation in legislative elections.
  • Maine’s experience refutes the claim that triggered matching funds “chill” spending.
  • “Fear of speech” should not be recognized as a First Amendment injury requiring strict scrutiny of public financing trigger provisions.