Davis v. FEC and the Constitutionality of “Clean Elections” Systems

February 16, 2009

William R. Maurer

In a “clean elections” system, taxpayer funded candidates must agree to limit their campaign spending. Imposing limits on campaign spending for candidates who forego taxpayer dollars and instead run traditional campaigns would be unconstitutional. Most clean elections schemes thus rely on “matching,” “rescue,” or “trigger” funds to level the playing fi eld between publicly funded and traditional candidates and to discourage traditional candidates from exceeding the spending limits imposed on the taxpayer funded candidate. When a traditional candidate raises or spends more money than the taxpayer fi nanced candidate’s initial subsidy, the government gives additional money to the taxpayer fi nanced candidate to counteract the amount the privately fi nanced candidate collects or spends. In other words, once a privately financed candidate raises or spends above the “trigger” amount, her exercise of her First Amendment rights results in a direct government subsidy to her opponent. For almost a decade, federal courts have largely upheld such systems against First Amendment challenges. The U.S. Supreme Court’s decision in Davis v. FEC undermines the reasoning of these decisions and likely spells the end of this new wave of regulating political speech....

Davis v. FEC and the Constitutionality of “Clean Elections” Systems