Amicus Curiae Brief — Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

Nos. LO-288, 10-239

an The

Supreme Court of the United States

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ARIZONA FREE ENTERPRISE CLUES

PREEDONM CLUB PAC) era

KEN BENNETT]

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WORIN MeCOMISH ,

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KEN BENNETT. ef oc

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On Writs Of Certiorari Po The

United States Court Of Appeals

For The Ninth Circuit

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BRIEF OF AMICI CURIAE MAINE CITIZENS

FOR CLEAN ELECTIONS, LAWRENCE BLISS,

PAMELA JABAR PRINWARD, ANDREW

O'BRIEN, AND DAVID VAN WIE

IN SUPPORT OF RESPONDENTS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI] CURTAE

SUMMARY OF ARGUMENDP

ARGUMENT

l

1]

MAINE'S SUCCESSFUL EXPERIENCE

WITH FULL PUBLIC FINANCING OF

ELECTIONS CONFIRMS THAT PUBLIC

FUNDING FURTHERS, NOT ABRIDG.-

ES, PERTINENT FIRST AMENDMENT

VALUES

A. Maine's Publhie Financing System

Bo Maine's Pubhe Financing Program

Has Attracted Widespread Candidate

Partierpation Freeing OfMceholders

from Indebtedness to Private Donors

and Deterring Corruption

CC. Pubhe Finaneing Has Enhanced the

Competitiveness of Marne Fleetions

D Pubhe Financing in) Maine Has In

creased Candidates’ Fngagement with

Voters and Citizens’ Participation in

Lewislatiwe Elections

MAINE'S EXPERIENCE REFUTES THE

CLAIM THAT TRIGGERED MATCHING

FUNDS “CHILL” SPENDING

“yi

1b

19

TABLE OF CONTENTS — Continued

Pare

lll “FEAR OF SPEECH” SHOULD NOT BE

RECOGNIZED AS A FIRST AMENDMENT

INJURY REQUIRING STRICT SCRUTINY

OF PUBLIC FINANCING TRIGGER PRO-

VISIONS 6

CONCLUSION $2

APPENDIX

2010 Maine Lemslative Candidate Andre

Cushing Fundraising Showing Dates of

Court Orders Denving Injunctive Rehet and

Trigger Date App. 1

in

TABLE OF AUTHORITIES

Page

CASES

Buckley vo Valeo, 424 US. 11976). jiniicacvaaonsieeenae

Citizens United ov. Fea) Election Comon'n. 130

te @ ». f) | aes mastered eT no Pere, od 13

Cushing oo McKee, Noo 10-ev-330 (D.Me. filed

ARR RIT RRAEE Tad tole nasa Ae, Dan 2 AY oe

Dagget! o Comm'n on Governmental Ethics &

Blection Practices, 205 F38d 445 (lst Cir

SE Sie cucviaisntetaewiss RE REESE EN ARIE ROEM cindones passim

Daggett vo Webster, 74 F Supp. 2d 53 (D.Me.

EIEN et Ee hn igh gn Ss AN ial ona RPE Dyed RNS oe aE ih oI b

Davis cv. Fed. Election Comon'n, 554 U.S. 724

eer Ee, ATR tne No theo ae Me

Day v. Holakan, 34 F.3d 1356 (Sth Cir, 1994) 000... 7

Doe v. Reed, L330 S Ct. Vsti (VO10) eee Oe te

‘ed. Election Comm'n co. Natl Conservative

PAC’, 470 U.S. 480 (2GB5)........ccc.....cccccse.. P Sah Pie ARE Wary Bet 13

Gable v. Patton, 142 F 3d 940 (6th Cir. 1998)... 7

Green Party v. Garfield, 616 F.3d 213 (2d Cir.

ee rll ARISE R RACE LES LA TANS S, SATS Gee eee ee Ne aed ae 7

MeComish oo Bennett, 611 F.3d 510 (9th Cir

RE REI RU ISS AE NAR es EE Le mC LB et Bs ce Pe

North Carolina Right to Life Comm. Fund v.

Leake, 524 F.3d 427 (4th Cir. 2008)... 7

Randall v. Sorrell, 548 ULS. 280 (2006)... 17

iW

TABLE OF AUTHORITIES — Continued

Page

Respect Maine PAC v. Mckee, 622 F.3d 18 (1st

Ce ee caeeeee eee OTS PRP RCA RRO Oe DO 7

Respect Matne PAC v. McKee, 131 S.Ct. 445

i i mca hieaeianiainaiouumaisniniode 2

Rosenstrel v. Rodriguez, 101 F.3d 1544 (Sth Cir.

RS RREREGRCER RE SN ren neo aly re ane NOV SAORI st BPN 7

Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010).......... 7

Terminiello v. Chicago, 337 U.S. 1 (1949)... 26

US. Croll Serv. Comm'n v. Natl Ass'n of Letter

Carriers, 413 U.S. 548 (1973) ..........................000005. 13

Vote Chortce. Inc. v. DiStefano, 4 F.3d 26 (ist

RRR erect erase ener nonce ee Wee aE Ee EI 7

Williams v. Rhodes, 393 U.S. 23 (1968) o.oo. 16

CONSTITUTIONAL PROVISIONS

a I: RO oa iaecdiinaeuee passim

STATUTES

CONN. GEN. STAT. § 9-714 (repealed 2010)............ pe

FLA. STAT. ANN. $ 106.355 (DOLL)...................ccccccccccees 11

Me. Rev. Stat. ANN. tit. 2LA § 1015 (2011)...0...0.......... i]

Me. Rev. Srar. ANN. tit. 21A $1121 ef seg.

| EERSTE REE os eer oD RN OI EON PERE ORR N DH ELD Tor 8

Mer. Rev. Star. ANN. tit. 21A § 1122 (2OLD) 2.0... 8.9

TABLE OF AUTHORITIES - Continued

Page

Me. Rev. Stat. ANN. tit. 2LA§ 1125

| RE STEERS Re ELTA SEB eater eT 8, 9, 10, 11, 12

Me. Rev. Srar. ANN. tit. 21LA § 1127 (2011)......00..0....... )

REGULATIONS

rs is i OF OP sis cccencciccnnsiccessodsesnsnes 10, 11, 12

Ariz. Admin. Reg. R2-20-113.....................:cccesseeeeeeceees ll

OTHER AUTHORITIES

Anthony Gierzynski, Do Maine’s Public Fund-

ing Program's Trigger Provisions Have a

Chilling Effect on Fund Raising? (2011)................ 24

Becky Bohrer, Tea party group makes fundrais-

ing plea for Miller, ANCHORAGE DAILY News,

Rg i SN cpsesncinapbispieicnaiecpnsishentaacaeutnsnbiecaaeichbn dicdediocapntiied 30

Charlie Brennan, Threats in wake of Bruce

controversy, CHICAGO TRIBUNE, Apr. 24, 2008 ........ 28

Critical Insights on Maine Tracking Survey:

Summary Report of Finding from Proprietary

Items (Critical Insights ed., May 2010) in

Declaration of Mimi Marziani, Exh. 3, Cush-

ing vu. McKee, No. 10-cv-330, docket # 46

SL Ss iy BP vnicneninencscencncavsmnunsevsntesennenvinins 16

Declaration of Alison Smith in Support of

Motion to Intervene, Cushing v. McKee, No.

10-cv-330, docket # 46 (D.Me. Dec. 6, 2010).......... 15

vl

TABLE OF AUTHORITIES ~— Continued

Page

Declaration of Andrew O’Brien in Support of

Motion to Intervene, Cushing v. McKee, No.

10-cv-330, docket # 46 (D.Me. Dec. 6, 2010)....15, 16

Declaration of Lawrence Bliss in Support of

Motion to Intervene, Cushing v. McKee, No.

10-cv-330, docket # 46 (D.Me. Dec. 6, 2010).......... 21

Declaration of Owen Pickus in Support of

Motion to Intervene, Cushing v. McKee, No.

10-cv-330, docket # 46 (D.Me. Dec. 6, 2010) .......... 15

Declaration of Pamela Jabar Trinward in

Support of Motion to Intervene, Cushing v.

McKee, No. 10-cv-330, docket # 46 (D.Me.

I laine chart eeae catinceiadl dd amendaaiamds 15, 16, 22

Donald Green and Alan Gerber, Get Out the

Vote: How to Increase Voter Turnout, The

Brookings Institution (2008) .........0.............0.ceee eee 19

Huma Khan, Four California Lawmakers Get

Profiles in Courage Award, ABCNEWS.COM,

May 24, 2010, available at http://abcnews.

go.com/GMA/profiles-courage-california-state-

legislators-recognized-bipartisanship-budget/

eT I cciincdiisiniciinistinisotinniinnmioniatessesnseses 28

Kenneth Mayer, Timothy Werner and Amanda

Williams, Do Public Funding Programs En-

hance Electoral Competition?, in THE MARKET

PLACE OF DEMOCRACY: ELECTORAL COMPETI-

TION AND AMERICAN POLITICS 245 (Michael P.

McDonald and John Samples, eds., 2006) ....... 17, 18

Vu

TABLE OF AUTHORITIES — Continued

Page

Massachusetts Election 2010, Palrick Canipaign

Responds to RGA Attack Ads, July 18, 2010,

avadable at http: massachusetts-election-

LOLO.com 2S49 patrick-campaign-responds-to

NII ooo voce ceeecccuciexaxcvcacsseumnsetevancanexys 30

Maine Commission on Governmental Ethies

and Election Practices, 2007 Study Report

Has Public Funding Improved Maine Elec

tions? (2007), avarlable aft http: wwwomaine.

gov ethics pdf publications 2007 study_report.

GREET IE etes acini, Cub Seat etee hs ae doen el a a

Maine Comm'n on Governmental Ethics and

Election Practices, Marne Clean Election Act:

Overview of Participation Rates and Payments,

2000-2010 (Jan. 19, 2011), available at http:

www. mainecleanelections.org assets files Ethics

T20Con niission SLOOverview ELOZ000- 2010

2QWforSZOLVAT2O LI. L128 129 pdf... oe

~

a

Michael G. Miller. Ciftreens Engagement and

Voting Behavior in Publiciv Funded Elections

(Working Paper), avadadle at http: www.

sites google.com site millerpolset research ..... 20, 21

Neil Malhotra, The Impac? of Public Financing

on Electoral Competition: Evidence from Ari

cona and Maine, 8 State Politics and Pohey

Quarterly 263 (2008), avardadble at http: spa.

sagepub com content. 83 263 abstract keeper

tL

Vill

TABLE OF AUTHORITIES — Continued

Susan M. Cover, Mitcheil: Sees Strong Victory,

Doubts Gender Plaved a Role, THE PORTLAND

Press HERALD, June 10, 2010, avadable af

http: www.epressherald.com news nutchell sees

strong-victory-doubts-gender-plaved-a-role

2010-06-10 html’comments =v...

Wmothy Wilhams, Ajfer Theson Shooling, a

Strugsle to Stav in Reach, N.Y. Times, Feb. 6,

ZOlL, at Al2, avadable at http: wwwons

tames.com 2LOLL O02 07 us polives OF tewnhalls.

htmlret=timothywalliams

Page

oe

INTEREST OF AMICI CURIAE

Maine Citizens for Clean Elections OMCCE") is a

non-partisan association of organizations and ind:

viduals with the common purpose of working i the

pubhe interest to advocate for, increase public sup

port for, defend and umprove the Maine Clean Elec:

tion Act CMCEAY and other campaign finance reforms

For its fifteen vear history, MCCE has been dedicated

to ensuring the orderly and successtul tunetioning of

the election) process and = Manrne's citizen-initiated

campaign finance system

MCCE has invested deeply in the success of the

MCEA. Attempting to address off expressed concerns

about the influence of moneved interests on Maine

elections and in Maine's government, the organi:

tron drafted the law and successfully campaigned for

its approval by popular vete in November 12996) Since

then, MCCE has spearheaded significant efforts to

educate the publhie and candidates about the law,

ensured its full implementation by the Maine Com

mussion on Governmental Ethics and Election Prac-

tices. helped detend the law trom the first round of

legal challenges, see Daggeté oo Comoun’n on Govern

mental Ethics & Flection Practices, 205 F3d 445 (lst

Cir, YOOO), and fought tor the law's full financing

Most recently, MCCE participated as anuecus before

This bret as filed with the writen consent of all parties

No counsel for a party authored this bmef in whole or in part,

and no counsel or party funded us preparation or submission

this Court in Respect Maine PAC © McAee, Now 10-

ASe2, opposing an pane for a writ of mgunction

ayrainst the pubhe financing: trigger previsions of the

MCEA The Court denied Rig appheation. Respect

Maine PAC vs McKee, UL S.Ct. 448 Oet 22, 2010).

Ameer Lawrence Bliss, Pamela dabar Troward,

Andrew O'Brien, and David van Whe are individuals

who ran as participating candidates under the MCEA

in the November 2OL0 elections — and who plan to

run again in future races) Lawrence Bliss and Pamela

Jabar Trinward competed for seats in Maine's Senate

While Andrew O'Brien and David van Whe ran ter

Maine's House of Representatives

Their campaigns demonstrated the benefit. of

supplemental funds ino different types of races for

Maine's lemslative contests: highly competitive races,

races against traditionally funded opponents who

exceeded the trigger threshold, and races where outside

groups funded independent expenditures. Each invest

ed substantial resourees qualitving for the publre

funding system and organizing tis or her campainrn

according to its regulatory seheme and each is strongly

inclined to run as a partieipating candidate in future

campaigns, but the wangeatipd of matching: funds is a

tactor in whether or net each will participate: Pamela

dabar Trinward and David van Wie also participated

with MCCE as arivct before dus Court ino Respect

Maine PAC: McoAece, No LO-AS&L

SUMMARY OF ARGUMENT

Enacted by the cuavens of Marne through a voter

intiiative, the MCEA has offered a full publhe funding

option to candidates for state offiees for the past

decade That option provides candidates who demon

strate a threshold level of pubhe support woth an

initial distribution of publi funds in heu of private

contnibutions. It provides tor additional funds in more

highly contested clections, subject to a cap, under a

formula that takes into account an opponents spending

and spending by independent sources. Maine's suc

cessful expemence with puble tinancing in six election

eveles since 2000 confirms that publie funding fur

thers, not abridges, pertinent First Amendment values

Full public financing has invigerated the elec

toral marketplace in| Maine) Candidates across the

political spectrum have opted inte the puble finane

Ing program ip large numbers, reflecting strong and

widespread pubhe support for an electoral system

that frees candidates from dependenev on private

donations and thus deters the threat and appearance

of Quid: pro que corruption The availabiiity of full

pubhe financing has spurred electoral competition,

dramatically reducing the number of uncentested

elections and enhancing challengers’ ability to take on

incumbents in competitive elections. The full pubhe

financing program has enhanced candidates’ engage

ment with voters and increased cnizens’ participation

In state legislative elections

Maine's law accomplishes all Chis without pacing

anv limit on what privately funded candidates may

spend or on independent expenditures. To encourage

participation in the system, the program ieludes a

trigger provision allowing additional puble tunds toa

partiapating candidate ander certain conditions, based

on calculations that take into account an opponents

spending as well as independent expenditures both for

and against the participating candidate and his

opponent: The alvhty to receive triggered matching

funds in more highly contested electrons is eriical to

ensuring stromy participation, and thus eritical to the

suceess of the MCFEA in tulftiling its anti-corruption

PUPrpose

But such addiienal funds are subrect to an upper

lumat, se a privately financed candidate remains free

to outspend his opponent

The record in Maine refutes any contention that

the triggered matching funds work Co “chill” fundrais

ing or spending by privately financed eandidates oF

independent sources. Analysis of spending patterns in

Maine elections from ZOOL through 2010 shews ne

‘mpirical support for the conpecture Chat Maine's trix

ger provisions deter candidates from orarsinyg and

spending as much as they can Indeed, the achons of

the only candidate ever to have chumed such a First

Amendment injury in Maine directly disproved the

“chil” theory. He outspent not only bis) pubhely

financed opponent, but all other candidates tor the

Maine House in O10 | including those who taced ne

publicly financed opponent

Finally, the “fear of speech” theory that petitioners

Advance in this case is fundamentally at odds wath

the purpose of the First Amendment, which seeks to

“secure the widest poss:ble dissemination of untor

mation from diverse and antagonistic sources ” Ruck

fev © Valeo, 424 US. 1, 49 C1976) conations omitted)

In the pohtieal marketplace contemplated bv the First

Amendment, an exchange ot diverging viewpoints os

to be encouraged, not feared — and the supplemental

funds foster rather than inhilut that exchange The

kirst Amendment therefore should not be twisted into

an instrument that shields candidates trom) other

candidates’ speech. Instead, the puble financings

provisions atoissue here are fully constitutional as a

means to enhance and tacilitate the “Suninhibited,

robust, and wide-open’ publ debate” that the First

Amendment was destyned to ensure. Jo at 98 n 127

ARGUMENT

1. MAINE'S SUCCESSFUL EXPERIENCE WITH

FULL PUBLIC FINANCING OF ELECTIONS

CONFIRMS THAT PUBLIC FUNDING FUR-

THERS, NOT ABRIDGES, PERTINENT

FIRST AMENDMENT VALUES.

Bruekleyv dong ago established the principles

anchoring the constitutionality of pubhe financing of

elections, holding that the role of puble funding in

expanding puble deliberation and debate directly

serves the goals of the First Amendment

ty

iTlhe central purpose of the Speech and

Press Clauses was to assure a society in

which “uninhibited. rebust, and wide-open”

public debate concerning matters of pubhe

interest would thrive, for only in such a soctety

can a healthy representative democracy tlour-

ish) Lemslation to enhance these First Amend

ment values is the rule, not the exception

ld (evtations omitted) Like the presidential publie

financing system praised by the Buckley Court, the

MCEA ts an effort “not to abmdge, restrict, or censer

speech, but rather to use pubhe money to facilitate and

enlarge pubhe discussion and participation ino the

electoral process, geals vital to oa) self-governing

people "fd at 2-98

Follow ag ats enactment in 1996. various prove

sions of the MCEA — including: rts pubhe financing

trigger provisions, disclosure provistons, and contr

bution hmuats — were challenged on First Amendment

grounds These provisions all were upheld by both the

Distriet Court and Court of Appeals: Dagsetii co Wed.

ster, 74 F Supp. 2d 53 (DD Me. 1999), aff'd sud nom

Daggett o Common on Governmental Ethics & Elec-

tion Practices, 205 FS3d 445 (ist Cir 2000)” Maine’s

experience under the MCEA over the past decade

confirms that its pubhe financing program “furthers,

not abridges, pertinent: First Amendment values

Buckles 424 US at 93

Following Buckley, voluntary public financing schemes

repeatedly were upheld in recegmitien of this principle — that the

ruthts of nonparticipants are pot uncenstitutionally infmnyged by

the grant of puble funds to participating feet See. an

addition to Daggett, North Carolina Rught to lafe Comm Funda :

Leake, 524 F 3d 427 «4th Car 2008) catlirming rho ot preluma-

nary umunection against puble financing system for appellate

judhenal electhons), Gable co Patton, 142 Fad 940, 948-949 (6th

Cir 1998S) cupholding trgyver provisien bing certain limits en

parbopating candidates when nonpartrapating candidates

exceed certain threshold), Rosenstiel o Radrigues, 101 Fd

1h4a, ASL Sth Cir 1996) (upholding Minnesota’s public funding

fur elections), Vote Choree, Inc co DiStefane, 4 Fad 26, SS cist

Cir 1993) «upholding Rhode Island's pubhe tunding system), dut

ew Dave Holahan, 34 F Sd 1356 (Sth Cir 1994) cstriking down

trigger poosvision for matching funds where participation im pre

yram was nearly LOO’ before tminter provision was added!

More recently, four circuits have reached varying conclu

sions about the constitutionalitw of diferent tmayrer provisions

within four states puble funding programs Respect Maine PAC

t Mcdew, O22 PSd 18 cist Cor 2010) (denving request to enjoin

trigver provisions! MoComish o Bennet? 811 FSd S10 Oth Cir

YO1O) cupholding Crygrer provisions! Grwen Poerty co Garftela,

616 Fad 213 (ld Cir LOL) Ustmkingy tragter provisions), Scott ro

Roherts, G12 Food 279 allth Cir 201M) vemoning trigger

provistons!

The different outeomes of recent causes underscore that no

two pubhe funding programs are abke See Daggett, 205 F Sd at

469 no two public funding schemes are identical, and thus ne

two evaluations of such systems are alike”) Accordingly, it ts

erroneous to treat all grant distmbation plans as identical for

constitutional purposes Jd > see also MeComish, 611 FP Sd at S23

526 examining factual record of Amzena’s program to balance

extent of burden against strength of state interests) Instead,

(Continued on following page)

A. Maine’s Public Financing System

In November 1996, through a citizen initiative,

Maine voters adopted a set of provisions establishing

a voluntary public financing program for state legis

lative and gubernatorial elections, the Maine Clean

Election Act, Mr. Rev. Star. ANN. tit. 2LA $$ 1121 ef

seg. CMCEA®). Under the MCEA, candidates who

meet certain qualitving conditions and agree to limit

their private fundraising and expenditures become

elimble to receive set amounts of public financing for

their campaigns

Candidates seeking to participate in) Maine's

pubhe funding program must meet several require-

ments. They must demonstrate a level of pubhie

support by collecting a minimum number of $5 “quah-

fving contributions” from. registered voters in the

candidate's district.” To facihtate the process of rats-

ing qualitving contmbutions, lemslative candidates

also may raise a limited total of “seed money” contri-

butions in amounts not greater than $100 per dona.

tion; While gubernatorial candidates are required to

collect at least $40,000 from in-state donors im such

the range of burdens and interests presented by cach scheme

must be closely analyzed and balanced

* Gubernatorial candidates must collect 3.250 qualifving

contmbutions, Senate candidates 175, and House candidates 60

Mr Rev Srar Ann tit LIA $1120) These quahfving contri

butions are deposited to the Maine Clean Election) Fund

Fund”), not te the individual candidate’s account See id

S$ PIQQAT) A TLS)

$100 seed money contributions as an additional

demonstration of the threshold level of support neces-

sary to quahfy for the public funding.” See id.

S$ 1122.9), 1125.27 & 1125.5 C- 1).

Once they are certified, participating candidates

may not accept any private contributions, and must

limit their campaign expenditures to the amount of

disbursements they receive from the Fund. See ic.

§$ 1124.6) Participating candidates are subject to cowvil

and eriminal penalties for violating the rules govern-

Ing participation. See rd § 1127.

Candidates who meet the qualifying require-

ments receive an initial grant from the Fund, which

is reduced by the amount of any unspent seed money

they have collected. See id) $$ 112505) & (7) Bevond

* The total amount that participating candidates may raise

through these $100 seed money contmbutiens is limited to $500

tor House candidates, $1500 for Senate candidates and $200,000

for gubernatomal candidates Mr Rev. Srar ANN tit. JIA

$$ 11229), D1ZADQ’) & D2 5KC-1) By contrast, candidates who

choose not to participate in the public financing program may

accept an unlimited number of denations, and each donor may

give $350 per clection tor legislative elections ($700 total for the

primary and general) and $750 per election for ywubernatonal

races ($1500 total for the primary and general) These limits on

contributions to privately financed candidates are adjusted for

inflation every two vears. See rd § LOLS

* The initial distribution for participating Senate and

House candidates us generally calculated based on the average

amount of campaign expenditures in the prior two election

eveles for the particular office. Meo Revo Strat ANN ut. 21A

S$ 1125.8) Begnning September 1, 2011, that formula wall be

moditied In determining the amount, the Commission will take

(Centinued on following page?)

10

the initial disbursement, participating candidates may,

under certain conditions, receive limited supple-

mental grants of public funds. These funds may be

triggered by the cumulative spending or fundraising

of an opponent coupled with independent expenditures

opposing the participant or supporting the opponent.

See id. § 1125(9).

Maine’s system for distributing additional funds

differs somewhat from those of most states. The

amount of additional funds provided to a participating

candidate in Maine is not solely a product of spending

or fundraising by the privately financed candidate

and Ins independent expenditure supporters, but is

reduced by the amount of independent expenditures

made to support a publicly financed candidate or to

oppose the privately financed candidate. 94-270

C.M.S. Ch. 3, $5(3XC) (Maine Comm'n on Govern-

mental Ethics & Election Practices). As a result, a

candidate who outspends his opponent will not neces-

sarily trigger matching funds. For example, a nonpar-

ticipating candidate might spend over the amount of

into consideration any relevant information including, but not

limited to, the range of campaign spending by candidates in the

prior two election cycles for the particular office, the Consumer

Price Index, significant changes in the costs of campaigning, and

the impact of independent expenditures on the payment of

supplemental funds. See id. § 1125(8-A). Participating guberna-

torial candidates receive and will continue to receive a fixed

amount for their initial distribution: $400,000 for a contested

primary and $600,000 for the general election. See id.

§$§ 1125.8 EB) & (PF), 1125¢8-A), 1125(9)

11

the initial distribution but the participating candi-

date nevertheless would not receive additional funds

if there had been offsetting independent expenditures

in favor of the participating candidate, or if inde-

pendent expenditures had been made in opposition to

the nonparticipating candidate. Id.*

_ The computation of matching funds in Maine also

excludes contributions received by Maine's privately

financed candidates when they are not actually dis-

bursed to influence the nomination or election of a

candidate — such as contributions that a nonpartici-

pating candidate may use to repay a loan, refund a

contribution, or transfer to another political commit-

tee. 94-270 C.M.S. Ch. 3, § 5(3\(C) & (J).

The triggered matching funds a participating

candidate may receive are not unlimited, but are

subject to a cap. For legislative candidates, the cap is

equal to twice the initial disbursement. ME. REv.

StaT. ANN. tit. 21A § 1125(9). For participating guber-

natorial candidates in the primary, matching funds

may equal one-half of the initial distribution, while

for the general, matching funds equal to the initial

* In this, Maine’s system differs from Arizona’s, Connecti-

cut’s and Florida’s. Compare with Fia. Srat. ANN. § 106.355

(independent expenditures not taken into account); Ariz. Admin.

Reg. R2-20-113(c) (independent expenditures in opposition to

privately financed candidate not considered in calculating

matching funds); Conn. GEN. Stat. § 9-714 (repealed 2010)

(addressing only independent expenditures “with the intent to

promote the defeat of a participating candidate’).

12

distribution may be awarded. Jd.’ Once the applicable

cap is reached, participating candidates receive no

additional public funds regardless of how much

money the privately funded opponent raises or spends.

Participating candidates in Maine are not entitled to

cumulative matching funds for multiple opponents.

94-270 C.M.S. Ch. 3, § 5(3)(G).

Candidates who choose not to participate in the

public financing program face no limits on the ex-

penditures they may make in support of their cam-

paigns, or the total amount of contributions they may

raise from private sources. Thus, privately funded

candidates in Maine (and their independent expendi-

ture supporters) always retain the ability to outspend

an opponent who receives public financing.

B. Maine’s Public Financing Program Has

Attracted Widespread Candidate Par-

ticipation, Freeing Officeholders from

Indebtedness to Private Donors and

Deterring Corruption.

Deterring corruption of elected officials and

avoiding the appearance of corruption are significant

’ Thus, in the primary, a participating gubernatorial

candidate with an opponent will receive $400,000, with the

potential to qualify for an additional $200,000 in matching

funds; and in the general election, a participating candidate will

receive $600,000, with the potential to qualify for a maximum of

$600,000 in matching funds. Me. Rev. Stat. ANN. tit. 21A

§ 1125(9).

13

and indeed compelling governmental interests. Buck-

lev, 424 U.S. at 26-27; see also Citizens United v. Fed.

Election Comun'n, 130 S.Ct. 876, 901 (2010) (noting

the Buckley Court’s concern that “large contributions

could be given ‘to secure a political guid pro que.”

(quoting Buckley, 424 US. at 26), Fed. Election

Comm'n vo. Natl Conservative PAC, 470 U.S. 480, 496-

97 (1985) adentitving “preventing corruption or the

appearance of corruption” as “compelling government

interests”); U.S. Creil Serv. Common vo Natl Ass'n of

Letter Carriers, 413 ULS. 548, 565 (1973) (noting the

strong governmental interest in maintainmmng the

public’s “contidence in the system of representative

Government”).

By freeing candidates from dependency on pri-

vate donations trom sources that may expect a quid

pro quo from elected officials, public financing of

elections directly serves to deter corruption and its

appearance. As Buckley observed, “It cannot be gain-

said that public financing as a means of eliminating

the influence of large private contributions furthers a

significant governmental interest.” 424 U.S. at 96

The MCEA has been extremely successful in

ensuring that Maine legislators can serve their con-

stituents without being financially beholden to pri-

vate interests for funding their campaigns. The great

majority of candidates in Maine now run for legisla

tive office -— and win — without the need to seek

private donations, apart from $5 qualifying contribu-

tions or a handful of “seed money” contmbutions under

$100. The last four elections in Maine (2004-2010)

14

have seen participation rates of 77° to 81% among

candidates running for the legislature Maine

Comm'n on Governmental Ethics and Election Prac

tices, Marne Clean Election Aet: Overview: of Partic:

Pation Rates and Payments, 2000-2010 “Overview

Report’) at 1 Gan) 19) 2011), avarlable at

https wwwomainecleanelections. org assets files Ethies

“e20Commission V2L0Overview TZ02000-20 106-2 0for™

2OLVAT QOL LMT 281929 pdf (ast visited Feb. 17.

O11). Among candidates actually elected to office in

Maine, between 78% and SS ran with public fund-

Ing over the same time period. Currently, 80% of

sitting lemslators in Maine are MCEA parhieipants. J?

The majority of Republicans and Democrats run

as MCEA candidates. In the 2010 Senate elections.

M4 of Republican candidates, and 82% of Democratic

candidates, used MCEA funding. J) In House cam-

paigms, S9% of Democratic candidates and 68% of

Republican candidates participated. J¢. In the three

gubernatomal elections since MCEA was enacted.

several highly competitive candidates. including nom

Inces of the major parties, participated in MCEA. Jd

Uhe abilty to receive additional funding bevond

the base grant to match at least some of the adverse

spending in mere highly contested elections is critical

to ensuring streng participation, and thus critical to

the success of the MCFEA in fulfilling its anti-

corruption purpose. As one candidate explained

The availability of matching funds was an

important factor in my decision to use the

lo

Clean Elections system. The elimination of

matching funds would make the system

much less attractive to me and no doubt to

other candidates, and would leave voters

hearing less speech, not more

Declaration of Andrew OBrien in Support of Motion

to Intervene, © TCO Bnen Deel”), Cushing oo AfcAee,

No. l0-ev-830, docket # 46 (D Me. Dee. 6. DPOLO): see

also Declaration of Pamela dabar Trinward. in Sup-

port of Motion to Intervene, © 8 CTyinward Decl”),

Cushing vo McKee, Now l0-cv-330, docket # 46 (D) Me.

Dec 6. 2010) “Matching funds encourage participa

tion in the svstem” and “enable the voters to have

more complete information.”), Declaration of Owen

Pickus in Suppert of Motion to Intervene, © 5 CPrekus

Decl.”), Cushing i My Ave, No. LO-ev 330, docket % 40

(D. Me. Dee. 6, 2010) (avadability of matching funds

was a factor in decision to participate im system)

Accord Daggeit, 205 F3d at 467 Cy The government

may create incentives for candidates to participate in

a pubhe funding system in exchange for their agree-

ment not to rely on private contributions.”)

High rates of participation in the pubhe funding

program serve the state’s erttical interest in protect-

ing Maine's electoral process trom the threat of cor

ruption and its appearance. Sce Declaration of Alison

Smith in Support of Motion to Intervene, © 4 ("Smith

Deel”), Cushing oo Mckee, No. 10Q-ev- 330, docket # 46

DMe. Dee. 6, 2010) (noting importance of MCEA

In preserving “an electoral svstem that is free of

corruption’) Indeed, Maine citizens consistently

lt

OXpress strong support for Maine’s public funding

program Ino recent surveys, two-thirds of Maine

voters expressed overall approval for the law and

agreed that the MCEA is needed because, prior to the

enactment of the Law, large donors wielded dispropor-

tionate influence. Seventy percent Oxpressed support

ter the public financing provisiens specifically, Nee

Critical Insights on Maine Tracking Survey: Sum.

mary Report of Finding from Proprietary Items 5, 7,

0 (Critical Insights ed... May 2010), 2 Declaration of

Mimi Marviam, Exh 3, Cushing vo MeKee, No. 10 ev

330, docket #46 (1) Me Dec 6, VOTO)

Candidates and legislators also confirm that high

rates of participation in the public funding program

serve to protect: Maine's electoral process trom the

threat of corruption. See O'Brien Deel § 4 Cl partici

pated in the Clean Elections system in part because |

believe itis important for the pubhe to know that

their legnslaters owe no debt to large contmbutors.”),

Trinward Deel § 3 (neting public financing’s role in

“reducing the appearance of undue influence”)

C. Public Financing Has Enhanced the

Competitiveness of Maine Elections.

This Court has recognized that electoral compet

e iy

tion is central to democratic governance as a means

by which voters can hold elected oMecials accountable

See Williams cv. Rhodes, 3938 US. 28, 382) (1968)

CCompetitien tn ideas and governmental poleies is at

the core of our electoral process and of the First

Amendment freedoms”), Randali ¢ Sorre//, 548 US

230, 249 (LOU) Cexpressing concern that entrench

ment of incumbents harms competition, “thereby

reducing electoral secountaluhtw"’) See also. ee.

Kenneth Maver, Nmothy Werner and Amanda Wil-

hams, Do Pudlic Funding Programs Enhance Elec

foral: Competition? oom Tar Marker Phace Or

DEMOCRACY: ELECTORAL COMPETITION AND AMERICAN

Poutics 245, 249 «Michael Po MeDonald and John

Samples, eds. 2006) C Maver study") (“meaninetul

political competition is the foundation of democratic

legatimaey”) Studies examining the impact of public

finaneing en Manne’s elections have found that the

competiiiveness of elections has increased in a variety

of Ways since adoption of full public financing

As noted in the Maver study, “(tchere is compel-

ling evidence that Amvona and Maine have become

much more competitive states in the wake of the 19as

clean elechons programs” Jd) at 2638. With respect to

Maine, the study found that after full pubhe finane

ing Was adopted, the percentage of lemslative elec

fons in Which incumbents were challenged increased

my both 2002 and 2004, and that “Maine's contested

rate in 2004 (YS percent) was higher than it was at

any pornt since 19907 Ja) at 257) Not only were more

meumbents challenged. but the contests themselves

Were More competitive, as Measured by the margin of

vietory in the election. In 1998, before public finane-

Ing Was instituted, only 85° of lemslative incumbents

in Maine were in competitive races, while by 2004,

Is

nearly two-thirds of meumbents (6450) faced competi

tive races. Ja. at 2d5a

A 2008) study analyzing the impact ef pubhe

hnaneing in Arizona and Maine found stmnlar etYects

(Cilean elections programs in both states sig-

mificantly increased competition in districts

where challengers accepted paubhe funding

These findings suggest that publie momes do

not simply attract low-quality. challenyers

and that access to campaign funds is an im

portant determinant of competitiveness

Nel Mathotra, The Tmipact of Public Friancing on

Rlectoral Competition. Evidence from Arizona and

Maine, 8 State Powttics anp Poucy QUARTERLY 263

(2008) (from abstract), avavohle at http spa sage

pub.com content. 8 3 263 abstract Cast visited Feb. 1s,

YOTT)

A 2007 study by the Maine Commission on Gov-

ernmental Fthnes and Flection Practices (“Commis

sion”) also noted gains in competition While there

Were typically more than 30 uncontested races in

general elechons for the Maine legislature ino the

years preceding the MCEA (1990-1998), the number

of uncontested races dropped to 5 in 2004 and only 4

in 2006. Maine Comm'n on Governmental Ethics and

Election Practices, 2007 Study Report) Has Public

Funding Improved Maine Elections: (2007 Report”)

at 19, Pig. 24 (2007), avavladle at http) www maine.

gov ethies pdf publications 2007 study report pdf Cast

visited Feb 17, 2011) A survey of candidates in 2006

1)

showed that the avaulatility. of pubhe tunding was

particularly important to first-time candidates on

encouraging them to ran dg atl? In the recent 2010

elections, LOO. of the Senate candidates who won a

Senate seat tor the first trme (14 candidates) did so

with MCEA funding

D. Public Financing in Maine Has In-

creased Candidates’ Engagement with

Voters and Citizens’ Participation in

Legislative Elections.

Bucklew recognized that the “burden of fundrats

ing” solely through private donations is one of the ils

addressed by pubhe tinaneing, which the Court found

“an appropriate means of reheving major party Pres

dential candidates of the mgors of soliciting private

contributions.” 424 US. at 96: see also id. at O41

(noting Congress’ goal of “free{ing) candidates from

the rngors of fundraising’ through pubhe financing)

The record in Maine shews that its pubhe financing

program has helped promote a robust electoral debate

ie part by freeing candidates’ resources from the

burdens of tundraising and thus taciltating increased

engurement with the voting pubhe

tat tan

Direct campaym engagement with voters — es,

face-to-face canvassing and other personal forms of

outreach — is well understood as a powerful tool for

voter mobilization. See. eg. Donald Green and Alan

Gerber, Get Out the Vote: How to Increase Voter Turnout,

The Brookings Institution (2008) Thus. if pubhe

"0

funding frees candidates trom) fundraising duties,

they are hkely to spend more time on direct voter

outreach, and this in turn can stimulate voter en-

gagement in elections Indeed, a study of states with

full pubhe finaneing Gneluding Maine) shows that

“the acceptance of full funding provides candidates

with time flexibility sufficiently powecful to facihtate

higher levels of direct interaction with citizens, and

that this heightened engagement translates to more

voters casting ballots in those races.” Michael G

Miller, Crfireen Engagement and Voting Behavior in

Publicly Funded Flections at 3 (Working Paper),

avavable at http. wwwesites google com site: millerpolser

research (visited Feb) 10, 2011)

According to the study, “the acceptance of full

funding such as that in Arizona, Connecticut, and

Maine, causes an increase of nearly 10 percentage

points in the proportion of time candidates spend

directly engaging voters” — a difference that is “highly

significant.” Jd) at 15. Indeed, the “enhanced mobilr-

zation capability” facilitated by full public finaneings

“translates to at least hundreds, and possibly thou-

sands of high-quality voter contacts that would not

have otherwise occurred” Jd. at 26

Moreover, the same study found that the add

tional time candidates spend engaging with voters

when full pubhe financing ts available translates into

increased Lkelhood of voter participation in legisla-

tive elections. Political scientists long have recognized

the phenomenon of voter roll-off in elections that

are not at the top of the ballot — such as state legislative

re |

elections. Jd. at 8-9. Voters whe cast a vote in the “top

of the ballot” race © President, Governor, U.S. Senate

may not be as hkely to vote im state legislative

races, Which are lower down on the ballot and about

which they may have less information. Accordingly, a

good measure of the impact of pubhe financing on

voter engagement is to test whether it reduces voter

roll-off in legislative contests where at least) one

candidate uses public funding. Jd. at 8. In tact, the

study found that ballot roll-offin districts with a can-

didate using full public financing “is lower by about

1.5 percentage points in Maine and 2 points in Con-

necticut, a factor of about 20% in each state” ld. at 3.

Candidates who have used pubhe financing in

Maine confirm that the svstem facilitates broader

engagement with voters. As gubernatorial candidate

Libby Mitchell noted, “As soon as we qualified, the

only job I had was to connect with voters,” she said. “1

would often say, ‘No vou don't have to bring a check to

this party. It’s a house party to get to knew vou! This

is strange to many people.” Susan M. Cover, Mifchel/:

Sees Strong Victory, Doubts Gender Plaved a Role,

THe Porrhanp Press HERALD, dune 10, 2010, avaiable

at http: www.pressherald.com news mitechell-sees

strong-victory-doubts-gender-played-a-role 2010-06.

1O.htmPecomments=y. Similarly, Lawrence Bliss, a

candidate for the Senate in 2010, observed that the

public financing system “has allowed me to prioritize

and focus my time and efforts on speaking directly

with the voters | hope to represent, rather than

on fundraising.” Declaration of Lawrence Bliss in

*>-)

Support of Motion to Intervene. § 4 (Bliss Deel.”),

Cushing v. McKee, No. 10-ev-330, docket # 46 (D.Me.

Dee. 6, 2010). See al/so Trinward Decl. 93 (CT also

believe the voters of my district are better served

When candidates spend time directly engaged in

communication with voters in the district rather than

holding fundraisers or calling potential contmbutors

to ask for money.”).

Il. MAINE’S EXPERIENCE REFUTES THE

CLAIM THAT TRIGGERED MATCHING

FUNDS “CHILL” SPENDING.

Although opponents of pubhe financing in Maine

filed a legal challenge to Maine's trigger provisions

prior to the 2010 elections (Cushing v. McKee, No. 10-

ev-330 (D.Me. tiled Aug. 5, 2010)), they were unable

to produce any evidence that trigger provisions had

chilled candidate spending in Maine. In faet, the

spending record of the sole candidate who claimed to

be chilled by Maine's trigger provisions emphatically

disproved the chill theory. Further, broader analysis

of spending by privately financed candidates in

Maine elections for the past decade also shows no

evidence of a chilling effect from the trigger provisions.

The candidate-plaintiff ino Cushing vo. Mckee,

Representative Andre Cushing Ill, sought a pre-

election injunction based on a series of declarations

asserting that he would curtail his own fundraising

and spending in order to avoid triggering matching

funds for his opponent, unless the courts enjoined

23

when the

that alleg-

edly had threatened Rep. Cushing's First Amend-

ment rights simply dissipated. Additional tunds for

his opponent were released when Rep. Cushing's

spending reached the trigger, but rather than halt-

ing his expenditures at that point, his fundraising

and spending continued unimpeded, more = than

Maine’s trigger provisions. Nonetheless,

4

courts denied injunctive relief, the “chil

doubling the trigger amount by the end of the cam-

paign.

In facet, Rep. Cushing not only outspent his

opponents, but raised 25% more than any other

candidate for the House in 2010. Indeed, the largest

amount raised by a privately funded House candidate

who did not face a publicly funded opponent was

$5,490 — about half of what Rep. Cushing raised. His

voice Was heard loud and clear by the electorate in

Maine — he won the election — and the voters benefited

from hearing more total speech than if his legal

challenge had succeeded in blocking additional funds

to his opponent.”

‘A graph illustrating Rep. Cushing's fundraising is at-

tached as an Appendix to this Bref. All data for this graph, and

relating to fundraising in the 2010 election generally, were

obtained from pubhely available records of the Maine Commis-

sion on Governmental Ethics and Election Practices, www

maimne.gov ethics.

* It is worthwhile to consider what conclusions would have

been drawn from this same record had the distmet court, on

September 16, 2010, granted, rather than denied, Rep. Cushing's

request te enjoin Maine's trigger provisions. In that event, the

(Continued on following page)

24

Moreover, like the example of Rep. Cushing, the

larger record of privately financed candidates in

Maine's legislative elections spanning five election

evcles (2002 through 2010) shows no evidence of a

chilling effect from the trigger provisions. lf the

prospect of triggering additional funds to publicly

financed opponents indeed chilled the spending of

privately funded candidates, one would expect to see

their fundraising :.op just short of these thresholds.

The patterns in Maine’s elections, however, show no

such “clustering” below the triggering threshold.

Indeed, as noted in an analysis by Professor Anthony

Gierzynski, these spending patterns are indistin-

guishable from patterns seen in other states without

public financing programs. Anthony Gierzynski,

Do Maine’s Public Funding Program's Trigger Provi-

sions Have a Chilling Effect on Fund Ratsing?

(“Gierzynski’) (2011), available at http://www.

mainecleanelections.org/assets/files Do°%20Publie%20

Funding 20Program%20Trigger™20Provisions’?20

HaveCo20a%20Chilling’e20Effect 200n%20Fund 20

Raising.pdf (last visited Feb. 17, 2011). Instead,

privately funded candidates in Maine seem to raise

very same record of spending in the wake of the injunction

would have been touted as proving that an injunction against

matching funds was the necessary condition allowing Rep.

Cushing to make thousands of dollars in additional expenditures

beyond the trigger point. Only because the courts demied the

injunction is it possible to see that the claim of chill was a

fiction, and that the plaintiff made the sensible decision to

continue his campaign expenditures regardless of the additional

funds triggered for the opponent.

25

and spend as much as they can — presumably con-

strained not by the triggering threshold, but by their

own fundraising ability. Thus, the record in Maine

refutes the claim that privately financed candidates

engage in any less First Amendment activity than

candidates without publicly funded opposition.

In sum, the facts underlying the most recent

challenge to Maine’s public financing system only

serve to underscore what the courts found a decade

ago: the triggered matching funds do not “create an

exceptional benefit for the participating candidate.”

Daggett, 205 F.3d at 468. The rights of non-

participating candidates and third-party supporters

are not unconstitutionally burdened “as long as the

candidate remains free to engage in unlimited private

funding and spendirg instead of limited public fund-

ing.” Jd. (citation omitted). Indeed, participating

candidates who receive triggered matching funds

enjoy no competitive advantage relative to their

privately funded opponents. The reality under the

MCEA is just the opposite: The privately funded can-

didate, with an unfettered ability to amass private

funds and make unlimited expenditures, ultimately

enjoys a fundraising advantage over the publicly

funded candidate who operates under an expenditure

cap.

26

Ill. “FEAR OF SPEECH” SHOULD NOT BE

RECOGNIZED AS A FIRST AMENDMENT

INJURY REQUIRING STRICT SCRUTINY

OF PUBLIC FINANCING TRIGGER PRO-

VISIONS.

The electoral arena contemplated by the First

Amendment is one of “‘uninhibited, robust, and wide-

open’ public debate.” Buckley, 424 U.S. at 93 n.127

(citations omitted). Indeed, “[T]he vitality of civil and

political institutions in our society depends on free

discussion,” because “it is only through free debate

and free exchange of ideas that government remains

responsive to the will of the people and peaceful

change is effected.” Terminiello v. Chicago, 337 U.S.

1, 4 (1949). “Accordingly, a function of free speech

under our system of government is to invite dispute.”

Id. See also Buckley, 424 U.S. at 49 (the First

Amendment seeks to “secure the widest possible

dissemination of information from diverse and antag-

onistic sources”). In sum, in the political marketplace

contemplated by the First Amendment, an exchange of

diverging viewpoints is to be encouraged, not feared.

The claim advanced by petitioners in this case

contradicts this constitutional tradition. Instead of

needing First Amendment protection from govern-

ment-imposed spending limits, they ask for First

Amendment protection against “hostile speech” by

their electoral opponents. See, e.g., Brief of Petitioners

John McComish, Nancy McClain and Tony Bouie

6y™

~

“MeComish Pet. Br“) at 31, 41, 46." Facing no limits

on what they can say, they threaten to censor them,

selves if their opponents are mven the means to

respond. They ask for creation of a First Amendment

“nght to speak without response.” Cf Daggett, 205

F.3d at 464.

Because such a claim is so inherently at odds

with the First Amendment's commitment to robust

debate as the foundation of democracy, it should not

result in strict serutiny of trigger provisions even if

the likelihood of candidate self-censorship were both

plausible and proven. But it is neither, for several

reasons.

First, the notion that candidates seeking elee-

toral office are so fearful of an opponent's speech that

thev will routinely turn down donations or curtail their

own spending solely to prevent it is not realistic.

Except in uncontested elections, entering the electoral

arena entails facing an opponent and vying with him

or her for public approval. Candidates for office under-

stand that they must face not only responsive speech

from their opponents, but sometimes uncomfortable

or hostile scrutiny from the press and the public at

large.

Indeed, recent events have brought vivid remind-

ers that persons seeking and attaining public office in

“ The McComuish petitioners use the phrase “hostle speech”

to describe what they fear at least 15 times in their bref on the

merits

these rancorous times must all too often be prepared

to face anger, threats and worse because of the public

positions they take.” Yet the petitioners’ First Amend-

ment theory argues that these same aspiring public

servants must be considered so framle that they wall

hold back from promoting their own campaigns

merely because they fear responsive campaign ads er

mailings by their publicly funded oppenents. Such a

timid conception of electoral politics is unrealistic.

and in any event makes a poor foundation tor a First

Amendment claim

Second, petitioners’ First Amendment theory ts

irrational even on its own terms. It posits that pri

vately financed candidates would preter to compete

See, og. Tymothy Williams, Ager Theson Rampage. A

Siruccle to Stay in Reach, N.Y. Tiwes, Feb. 6. 2011, acvadadic at

http. www nvtimes com LO1L 0207 us politics O7townhalls html 4

ref=timothywilliams ‘describing representatives’ continuing

publhae events despite security challenges’); Huma Khan, Fou:

Caiforua Lawmakers Get Profiles in Courage Anan,

ABCNEWS OOM, May 24, 2010. GoavdaNe af http: abenews go com

GMA proliles-courage-califernis-state-legislaters-recognized.-

ipartisanship-budget story id= LOT2IT7TO0 moting threats

received by legislators young partisan budget deficit plan):

Charhe Brennan, Threats oi nooke of Bruce controversy, CHICAGO

TRIBUNE, Apr. 24. 2008S, avatlable at http. wwwehicago

tribune.com topic Advr-threatsinwakeofbrucecontr-63 795980,

3100002 story idesenmbing threats to legislators)

Indeed, even “harsh eriticism, short of unlawful action, is

a pmece our people traditionally have been willing to pay tor self

governance "Doe co Reed, 130 S.Ct IS811, 2837 (210) (Seaha. J

concurring in the judgment’; id cnoeting the value of “cme

courage, without which democracy 1s doomed”)

29

under a system where their opponents are suaraniecd

to receive the maximum possible public grant at the

outset of the campaign, even if the privately tunded

opponent never manages to raise eden amounts

See MeComuish Pet. Br. at 84-85. Such a system would

suffer from no constitutional infirmity under peti

tioners’ theoarv, because the funding for the publicly

financed candidate would be unrelated to the spend

Ins of the privately financed candidate or Mis sup

porters.” But ne rational pohtical actor would choose

such a system over the existing model of incremental

supplemental grants to participating candidates A

candidate who fears that an opponent wall be able to

match his spending clearly cannot relish the prospect

that the opponent will exceed hus spending

Petuioners cannot contend that af) pubhe financing

“gTants are suspect. because to do so would require overturning

Buckley, an outcome they have not even atempted to pursue

Accordingly, they are left wath the irravenal pesition that

privately funded candidates would prefer Langer, uneenditional

grants to their opponents, cather Chan smaller, incremental

grants that merely match what the privately financed cand:

dates spend. In Davis, the presumptively constitutional alterna:

tive of lffing contmbation linats for all candidates would at least

have afforded some benefit te the complaming candidate by

allowing him Co raise MATECT ¢ contributions as well Dacis :) Fed

Flection Common, 554 US) 724, 737 (2008) Here, no benefit

whatseever would flow to privately funded candidates bv

imstituting the alternative scheme they claim to prefer

The transparent goal of their First Amendment challenge.

then, is not to make pubhe finanang less burdensome tor

pnvately financed candidates, but instead to make it entirely

unaffordable for states. That goal does not give rise to a viable

First Amendment cause of action

30

Vhird, even if pubhe tinancing trigger provisions

are thought to prompt strategie choices by cand-

dates, these would not be different in kind than the

shoices made in races without public financing.

Regardless of pubhe finanemyg, candidates for office

realize that their own fundraising and spending may

well trigger a response from oan opponent or from

independent sources that support the opponent, and

may assist the opponent in attracting more dona-

tions. Candidates frequently cite their opponents’

advertisements or fundraising totals in appeals to

their own support ers asking tor additional donations

“Help me tight Candidate Smith's outrageous attack

ad” indeed is a common fundraising pitch."

Therefore, any candidate who enters the political

fray must weigh the possility that his own fundrais

ing, spending and speech wall moetihze additional

opposition to his campaign. But because a pubhely

-«

financed candidate has given up the right to engage

in additional private fundraising dumng the heat of a

campaign, a grant of additional pubhe funds provides

the only means for him to engage in the same kind of

See. eg . Becky Bohrer, Tou party group makes fundrars

ing pier for Miller, ANCHORACE DaILy News, Oct) 15, 2010,

apanadle at http www adn com DOLO 10 15 TS033877 problems-

prompt-fundraising-plea html casted Feb 15, 2011) Gundrais-

ing letter cites opponents fundraising), Massachusetts Fleetion

L010, Patrick Cartpaign Responds to RGA Attack Ads. July 13,

2010, evavadle af http) massachusetts-clection-20 10 com ZS49

patmek-campaign-responds-torga-attack-ads (visited Feb 15,

LOL) fundraising letter cites opposing attack ads)

responsive fundraising: that happens dayoin, day-out

in traditional campaigns. This merely “substitutes

public funding tor what the parties would raise

privately.” the very premise of a puble financing

system. Buckley, 424 US. at 96 n L2Y.

Trigger provisions for pubhe financing thus do

not inject any dramatically new dynamic into the cal

culus, but simply change the source of the responsive

funding. A candidate willing to censor himself based

on fear of responsive speech might do the same in an

elecuen without pubhe financing, but those hardy

enough to enter the electoral frav at all are hnghly

unlikely to choose such a passive course, regardless

whether the responsive speech is facilitated by private

or pubhe funding.

All of these considerations underscore that First

Amendment doctrine should not be distorted to ad

dress a “fear of speech” that is so completely out of place

in the electoral marketplace. A presumption of uncen

stituhionality that flows from applying: striet scrutiny

is entirely inappropriate for public financing provisions

that enhance and taciltate pubhe debate The First

*

te

Amendment should not be twisted into an instrument

that shields candidates from other candidates’ speech.

°

CONCLUSION

The judgment of the court below should be af-

firmed

February 2011 Respectfully submitted,

Brenpa Wright

Cou nsel of Record

Lisa d. DANET?

DiMos

358 Chestnut Hill Avenue

Suite 803

Brighton, MA 02135

(617) 232-5885

bwrughtedemos.org

JOHN BRAUTIGAM

} Knight Hill Road

Falmouth, ME 04105

207) 671-6700

Counsel for Amict Curtac

* Aruci also agree fully with the analysts set forth in the

briefs of the Respondents explanning why strict) scrutiny is

iINAppropriate in examining provisions Chat place no direct limit

on candidate spending, why the helding of Daiis co Fed Bleetion

Comm'n as unappheable, and why Anzona’s tngger provisions

should be upheld

App !

2010 Maine Legislative Candidate Andre Cushing Fundraising Showing

Dates of Court Orders Denying Injunetive KRehef and Ingger Date

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Phe vertical sites undicate dates upon wreck imjpunctive relief wax denied in the Maine case Vhe United State«

Paint ret Conant for the Durtriet of Mine densed Cushing's motion for an injunction on Septerniber 20, 2010 The

Mrited States Court of Appeals for the Firet Circuit derused (Cushing « motion for an aunjunmetion on October &

2010 Tne Uoristed States Supreme Court denied an emensency appoucation for a writ of iyurnetion pending

Uppealon Oetaber 22, 2010