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Op-Ed

Elections test

The Supreme Court should rule that clean election laws don't have a chilling effect.

March 28, 2011|By Costas Panagopoulos

This week, the U.S. Supreme Court is set to hear oral arguments in McComish vs. Bennett, a high-stakes case about public financing in American political campaigns. The court's ruling could affect public financing systems in numerous states and municipalities across the country, including programs in Los Angeles and several other California jurisdictions.

At issue is a provision in Arizona's clean elections law that triggers matching funds for candidates participating in the public financing program when their privately financed opponents (or independent groups backing them) spend beyond certain limits.

Critics say the system burdens those who opt for private financing. The free speech of privately financed candidates is "chilled," they argue, because they refrain from spending as much as they might like in order not to trigger the flow of public funds to an opposing, publicly financed candidate.

But is that kind of chilling effect real? Do candidates really spend less in order not to trigger the flow of public funds? The petitioners' claim in the case is backed primarily by anecdotal evidence from candidates and independent groups. So my colleagues Ryan Enos, Conor Dowling, Anthony Fowler and I decided to empirically analyze campaign spending data from state legislative elections in Arizona in preparation for an amici curiae we submitted to the court. What we found is that the claim does not hold water.

If the critics are right and money is withheld in order to keep an opposing candidate from getting public funds, you would expect the spending of privately funded candidates to cluster just below the trigger threshold. But when we analyzed election records from 2006 and 2008, we found no evidence of such behavior. In fact, more privately funded candidates spent just above the threshold than just below, exactly the opposite of what we would have expected if a chill was being caused by the matching provision.

Furthermore, because the Supreme Court issued an injunction on the release of trigger funds in the midst of Arizona's election last June, we might have expected candidates to have behaved differently in 2010 than in 2006 or 2008. Not so. Privately financed candidates who faced publicly funded opponents showed similar spending habits in all three cycles. In other words, doing away with the matching provision in 2010 did not appear to change the spending behavior of privately funded candidates.

We also examined whether total spending by candidates and independent groups increased when the provision was suspended. This rare intervention provided a unique opportunity to test for the effects of matching provisions on overall campaign spending. If matching provisions had previously chilled spending by nonparticipating candidates in Arizona, we should have observed a marked increase in Arizona in 2010 relative to other states. We did not.

In short, after multiple, rigorous statistical tests, we find no systematic, empirical evidence to support the charge that Arizona's matching provisions inhibit political spending and thus, political speech. We also fail to find any evidence that the injunction increased spending on behalf of or donations to privately funded candidates.

Because the court's decision in McComish vs. Bennett could help determine the fate of public financing in American elections, we believe a fair and balanced assessment of the available evidence as it relates to the critics' key contention is crucial. On this score, our findings are clear: Trigger funds do not have an effect on spending levels by privately financed opponents.

Arizona's Legislature recently voted to send the very idea of clean elections back to its citizens for a vote. So, even if the court does permit the law to stand, the voters will get their say in 2012. But the decision should be made based on the most reliable information.

Costas Panagopoulos is an assistant professor of political science and director of the Center for Electoral Politics and Democracy at Fordham University. He edited the forthcoming book "Public Financing in American Elections." Ryan Enos, Conor Dowling and Anthony Fowler also conducted the research reported in this piece.

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