Monday’s Supreme Court decision on Arizona’s “Clean Elections” law reaffirms that the government may not burden a person’s speech by forcing them to choose between remaining silent or creating an advantage for their political opponent. Minnesota’s current public financing law appears to run afoul of the new ruling.
Minnesota caps candidate’s spending when she chooses to receive public money. But if she runs against an opponent who does not receive public money and who spends more than a government-approved amount on his political speech, then Minnesota lifts the publicly financed candidate’s spending limits, and allows her to still receive the public money.
For example, in last year’s gubernatorial contest, Tom Emmer received public financing and agreed to spending limits. But because his opponent, Mark Dayton, refused public dollars to fund his campaign, Emmer’s limits were lifted and he got to keep all the public money lavished on his campaign. Minnesota punishes traditionally funded candidates like Dayton for daring to exercise their right to freely engage in political speech. It does so when it triggers great financial benefits to government-funded candidates when they face candidates who opt only to receive voluntary, private contributions. Minnesota punished Dayton for speaking by allowing his political opponent to double dip on contributions—getting state money AND private contributions—as a direct consequence of his decision to speak.
Originally, Minnesota’s system, just like Arizona’s, included matching funds and burdens on independent groups, but those were declared unconstitutional in 1994. Minnesota’s system of allowing government-funded candidates to double dip into the political contribution well when their traditionally financed opponents choose to speak more than a government-prescribed amount is a practice that is bound to chill speech and remains constitutionally questionable..