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Abstract

This Article asserts the current predicament of public campaign financing is this: options that are still on the table under the Court’s First Amendment jurisprudence are, with only rare and idiosyncratic exceptions, fiscal and political non-starters. Conversely, options that would be, and indeed previously had been, fiscally and politically viable, are now, even after years of their routine practice in varied jurisdictions, no longer constitutional. It is, in short, simultaneously a legal and practical dilemma. Short of highly unlikely swings of the Supreme Court pendulum, and absent an even more unlikely constitutional amendment, cities, states, and federal government actors, who might otherwise consider allowing candidates for office to opt for voluntary public financing, now find themselves between a legal rock and a fiscal hard place: unless a jurisdiction adopts, via extraordinarily high initial lump sum funding that grossly overspends the people’s money to the point of fiscal ruin, any candidate opting in is effectively volunteering only to play the role of a sitting duck. On the more promising side, this Article asserts that systems that operate based on offering funding as a multiple for small-donor donations offer one potential solution to the dilemma. However, the Article ultimately contends that such systems are particularly vulnerable in jurisdictions with small populations insofar as moneyed interest groups from outside the jurisdiction can easily overwhelm, for example, even the multiplied donations of the citizens of largely rural states or jurisdictions.

Part I situates public campaign financing in the historical and democratic tradition of the public square, and more pointedly, the facilitated public square. In positioning public financing within this “pre-history” of campaign finance, the Article asserts that the “affirmatives” represented by the early kinds of forum creation and speech fostering and facilitation were entirely consistent with the potential role of public financing in more modern deliberative democracy and republican governance. Having so positioned public financing, the Article then, in a purposefully brief but contextualizing fashion, considers the evolution of the ancient public square through, for example, extended public debates, the likes of which twenty-first century voters would scarcely recognize. The Article transitions from those early “affirmatives” in fostering the public’s political discourse to a consideration of the early legal and political theories of public financing as having been, in large measure, continuations and extensions of the public square. Building on the theories of public financing, Part II considers the extent to which those theories have been realized or thwarted by the legal and logistical aspects of America’s experiments with public financing. This analysis begins with the Presidential Election Campaign Fund Act’s authorization of publicly financed presidential party nominating conventions, primary elections, and general elections.23 Next, the Article examines the systems adopted in states and smaller jurisdictions that have embraced public financing. The Article divides these state systems into three categories. In the first category are the systems that—less effectively but less controversially— track the Federal Election Campaign Act’s (FECA or the Act) presidential public-financing scheme. The second category consists of the systems that, prior to Free Enterprise, were generally effective at achieving their ends but are now unconstitutional. With respect to the second category, the Article analyzes the Court’s decision in Free Enterprise, and the room, if any, the decision leaves for variations of the matching funds struck down by the Court.

The third category is comprised of systems and proposals that seek to forge an alternative to the fixed-sum/Presidential model or the matching-funds/Free Enterprise model. The most prominent, and in some idiosyncratic jurisdictions, successful alternatives involve smalldonor matching funds. The best-known iteration of such an alternative exists in the (idiosyncratic to be sure) jurisdiction of New York City. With these categories and the legal context in mind, Part III examines anecdotal and empirical evidence pertaining to modern political campaigns, both in terms of the now pragmatically moribund presidential public financing system and in terms of the dynamics specific to the post-Citizens United era. The Article asserts that, for all the attention paid to presidential contests, public financing is most important at the federal legislative level and in state races for legislative, executive, and judicial offices alike. Finally, the Article asserts that the less populated the jurisdiction but the more important the office— for example, a U.S. Senate race in North Dakota (population: 699,628) with the Senate majority possibly hanging in the balance— the more vulnerable the people’s interests are to being thwarted in precisely the manner described at the outset of this Article, in which the fiscal cliff legislation provided the vehicle to pass on $500 million in unnecessary Medicare costs to the taxpayers.

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