In an emergency appeal, the U.S. Court of Appeals for the Eleventh Circuit has enjoined Florida’s unconstitutional system of campaign finance “matching funds.” The ruling (.pdf) reverses a contrary decision—handed down only two weeks ago—by U.S. District Judge Robert Hinkle.
As we have previously described on this blog, matching-funds programs unconstitutionally discourage privately funded candidates from speaking because, if those candidates spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents. IJ will soon be appealing a similar challenge to Arizona’s matching-funds program to the U.S. Supreme Court.
More analysis of the 11th Circuit's ruling to follow.
How likely is it that matching-funds programs like those in Florida, Arizona and Connecticut violate the First Amendment? Accordingly to the 11th Circuit, “exceedingly likely.”
In its ruling enjoining Florida’s matching-funds program, the 11th Circuit panel treats the legal issue in gubernatorial candidate Rick Scott’s challenge to Florida’s law as an easy question that is entirely resolved by the Supreme Court’s 2008 ruling in Davis v. FEC. And the 11th Circuit is absolutely right.
In Davis, the Supreme Court struck down the so-called “Millionaires Amendment,” a provision of the McCain-Feingold campaign finance law. Under the Millionaires Amendment, if a self-financed candidate spent more than a certain amount of money campaigning for federal office, the opposing candidate’s contribution limits were dramatically increased. The Court held that this asymetrical financing system was an “unprecedented penalty” that created a “drag on First Amendment rights” and invalidated the system.
The 11th Circuit properly recognized that the First Amendment harm caused by Florida’s matching-funds scheme is even “harsher” than the harm in Davis—the increased contribution limits under the Millionaires Amendment only created the possibility that an opposing candidate would receive more money, while matching funds guarantees it.
The 11th Circuit’s ruling is the third in the last two months to consider this issue. Two weeks ago the 2nd Circuit invalidated (.pdf) Connecticut’s similar scheme, while the 9th Circuit upheld (.pdf) Arizona’s matching-funds system in May. The effect of the 9th Circuit’s decision has since been temporarily halted (.pdf) by the Supreme Court to allow the Institute for Justice and the Goldwater Institute, who represent the plaintiffs in that case, to seek review by the high court.
With this latest ruling deepening the split among the federal circuits, it is increasingly likely that the Supreme Court will grant IJ’s request for review. Arizona’s matching funds scheme is particularly egregious. Like Florida’s, it provides additional taxpayer subsidies to government-financed candidates who are outspent by their privately financed opponents. But even worse, Arizona’s law, unlike Florida’s, can also be triggered by independent spending. This means that groups of ordinary citizens are discouraged from speaking out in elections for fear that doing so will trigger subsidies to the very candidates they are speaking out against.
If the Supreme Court does take up this issue—whether in IJ’s challenge or another—it will have the opportunity to resolve an important question about the First Amendment and its protection for political speech. And—as the 11th Circuit did—it should treat that question as the easy one that it is, and declare matching-funds schemes unconstitutional.