By: Hillary Kies*


Over the past decade, North Carolina’s state government has been plagued by corruption and the appearance of corruption.  Corruption allegations and the resulting investigations regarding corruption allegations even reached the campaigns of former governor Michael Easley and outgoing governor Beverly Perdue.[1]  These North Carolina problems have been on trend with the nation’s “conviction—widely shared in the media, by political figures in both major parties, and by the public—that ‘special interests’ have come to dominate and distort the processes of government.”[2]  Across the country, “[o]ne well-known problem is that of quid pro quo corruption.  In the past few years . . . lobbyists, elected officials, and staffers have been arrested and convicted for violating various lobbying, reporting, and ethics laws.”[3]  The response to these problems, at both the federal and state levels, has been a broad wave of antilobbying proposals and statutes.[4]  The North Carolina legislature addressed this “crisis of confidence in State government” by reforming its campaign finance system in 2006.[5]

The North Carolina Campaign Contributions Prohibition may serve as a prototype for other states of a constitutional campaign finance reform statute. However, this could prove problematic depending on whether or not the state has an actual history of corruption.

One of these reforms, the Campaign Contributions Prohibition, prevents registered North Carolina lobbyists from contributing money to certain state campaigns.[6]  North Carolina lobbyist Sarah Preston challenged the constitutionality of this statute, claiming that it infringed upon her First Amendment “rights to freedom of speech and freedom of association.”[7]  In order to determine whether the statute was constitutional, the circuit court had to resolve which level of scrutiny was appropriate to apply in reviewing the prohibition—”strict scrutiny” or the less-searching, “closely drawn” scrutiny.  Although Supreme Court precedent had established that campaign contribution limits were subject to closely drawn scrutiny, the Campaign Contributions Prohibition posed some novel issues for the Fourth Circuit in Preston v. Leake.

This Note will focus on the appropriate level of scrutiny to apply to North Carolina’s Campaign Contributions Prohibition.  Part I will discuss the factual background of Preston v. Leake and the Fourth Circuit’s decision.  Part II will provide relevant Supreme Court precedent.  Part III will focus on some of the problems the Fourth Circuit faced.  These issues include the inconsistent levels of scrutiny applied in two previous Fourth Circuit cases, the narrow construction of an ambiguous sentence in Citizens United v. FEC[8] calling for strict scrutiny to apply when laws burden political speech, and the effective difference between a contribution limit and a contribution ban.  Finally, this Note will look at the potential impact of this decision upon future states’ campaign finance statutes.

I.  The Case

In 2006, the North Carolina legislature enacted section 163-278.13C of the North Carolina General Statutes, the Campaign Contributions Prohibition.[9]  This provision bars any registered lobbyist from making campaign contributions to a candidate for the North Carolina General Assembly or the Council of State.[10]  The statute states that “[n]o lobbyist may make a contribution as defined in G.S. 163-278.6 to a candidate or candidate campaign committee . . . when that candidate meets any of the following criteria: (1) Is a legislator . . . (2) Is a public servant.”[11]  A campaign contribution is defined expansively and effectively covers anything of any value.[12]

However, the North Carolina State Board of Elections (“Board”) issued formal advisory opinions enumerating certain actions that lobbyists are not prohibited from taking under the Campaign Contributions Prohibition.[13]  These opinions stated that a lobbyist may: contribute to political actions committees (“PACs”); make recommendations to PACs regarding campaign contribution candidates, so long as the lobbyist was not the decision maker; make recommendations to third parties regarding campaign contribution candidates; attend or host fundraising events, so long as the lobbyist neither paid for the event nor was reimbursed; volunteer, so long as the lobbyist incurred no expenses; and endorse a candidate by making telephone calls and exhibiting yard signs.[14]  Furthermore, a registered lobbyist is allowed to pass out signs and literature, engage in door-to-door canvassing supporting a candidate, and deliver a speech at a candidate’s rally.[15]

To enforce the Campaign Contributions Prohibition, the Board may investigate alleged violations of the statute.[16]  Furthermore, the Board is responsible for “assessing and collecting civil penalties of up to three times the amount of an unlawful contribution” and then “reporting violations of the Campaign Contributions Prohibition to the district attorney for possible criminal prosecution.”[17]

The express purpose of the North Carolina General Assembly in passing the Campaign Contributions Prohibition was “to ensure that elected and appointed state agency officials exercise their authority honestly and fairly, free from impropriety, threats, favoritism, and undue influence.”[18]  This statute was passed in reaction to a decade of corruption and the appearance of corruption in North Carolina’s government.[19]

As discussed previously, Sarah Preston sued the Board under 42 U.S.C. § 1983 to challenge the facial and applied constitutionality of the Campaign Contributions Prohibition.[20]  Preston wanted to show her support for state legislative candidates by making minimal, twenty-five dollar contributions to state campaigns.[21]  However, she was unable to do so because the Campaign Contributions Prohibition completely bans contributions by lobbyists.[22]  Thus, Preston argued that this statute violated her First Amendment rights to freedom of speech and freedom of association, as applied to the states by the Fourteenth Amendment.[23]

First, Preston contended that the court should review the Campaign Contributions Prohibition using strict scrutiny rather than closely drawn scrutiny.[24]  Unlike the marginal restrictions imposed on citizens by contribution limits, the North Carolina statute imposes a complete ban on lobbyist contributions and, therefore, directly restricted her core political speech.[25]  Preston believed that her case should be reviewed under strict scrutiny because this ban was upon political speech, and, inCitizens United, the Supreme Court stated that “[l]aws that burden political speech are ‘subject to strict scrutiny.’”[26]

Furthermore, regardless of whether the court reviewed the Campaign Contributions Prohibition using strict scrutiny or closely drawn scrutiny, Preston argued that the ban was both facially unconstitutional and unconstitutional as applied to her.[27]  She contended that the ban was unconstitutionally overbroad for several reasons.[28]  First, the ban does not include a temporal limitation.[29]  Second, the ban is not limited by the recipient’s identity.[30]  Third, this is a complete contribution ban rather than a contribution limit.[31]  Finally, Preston noted that the ban does not leave open sufficient alternative ways in which lobbyists could support candidates.[32]

The District Court for the Eastern District of North Carolina upheld the Campaign Contributions Prohibition as constitutional.[33]  The Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling, holding that “the statute is constitutional, both facially and as applied to Preston, as a valid exercise of North Carolina’s legislative prerogative to address potential corruption and the appearance of corruption in the State.”[34]  First, the Fourth Circuit found that the Campaign Contributions Prohibition should be reviewed using closely drawn scrutiny rather than strict scrutiny even though the provision implements a complete ban on campaign contributions instead of simply a limitation on campaign contributions.[35]  The Fourth Circuit reasoned that a contribution ban is only different from a contribution limitation in its scope, not the type of activity it concerns.[36]  Additionally, the Fourth Circuit rejected Preston’s contention that Citizens Uniteddemanded campaign contribution bans be reviewed using strict scrutiny.[37]  Thus, the Fourth Circuit concluded that “the Supreme Court has not overruled Buckley,Nixon, Beaumont, or other cases applying ‘closely drawn’ scrutiny to contribution restrictions.”[38]

Using this lower standard, the Fourth Circuit ruled that the Campaign Contributions Prohibition is closely drawn to a sufficiently important government interest.  First, the Fourth Circuit looked at the government interest.  The North Carolina legislature was responding to recent scandals regarding corruption and “made the rational judgment that a complete ban was necessary as a prophylactic to prevent not only actual corruption but also the appearance of corruption in future state political campaigns.”[39]  The state’s interest is very important because it is necessary to protect a democratic government.[40]  Additionally, the North Carolina ban is closely drawn to the interest of preventing political corruption because lobbyists have historically been susceptible to such corruption.[41]  Thus, “[a]ny paymentmade by a lobbyist to a public official, whether a campaign contribution or simply a gift, calls into question the propriety of the relationship, and therefore North Carolina could rationally adjudge that it should ban all payments.”[42]

The Fourth Circuit then concluded that the Campaign Contributions Prohibition is not overbroad.  Although the statute creates a complete ban that does not include a temporal limit, include a de minimis exception, or depend on the identity of the recipient, the ban is restricted to lobbyists, a small class of people.[43]  Additionally, “Preston freely chose to become a registered lobbyist, and in doing so agreed to abide by a high level of regulatory and ethical requirements focusing on the relationship of lobbyist and public official.”[44]  Furthermore, lobbyists are able to show their support for candidates in alternative ways.[45]  Options that are not prohibited by the Campaign Contributions Prohibition include volunteering, displaying signs, contributing to PACs, door-to-door canvassing, and attending or hosting fundraisers.[46]  Thus, the Fourth Circuit concluded that the North Carolina Campaign Contributions Prohibition does not violate the First and Fourteenth Amendments.

II.  Background

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[47]  The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.[48]  Because statutes that impose limits or bans on campaign contributions and expenditures “operate in an area of the most fundamental First Amendment activities,” they invoke the protection of the First Amendment’s guarantees of free speech and the right of association.[49]  In fact, the Supreme Court stated that “there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.  This of course includes discussions of candidates . . . .”[50]  Thus, the Court noted that “it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”[51]

The seminal Supreme Court case, decided in 1976, dealing with campaign finance was Buckley v. Valeo.[52]  In that case, the plaintiffs challenged the constitutionality of certain provisions of the Federal Election Campaign Act of 1971 (“FECA”).[53]  These provisions made it so that “individual political contributions are limited to $1,000 to any single candidate per election, with an overall annual limitation of $25,000 by any contributor” and “independent expenditures by individuals and groups ‘relative to a clearly identified candidate’ are limited to $1,000 a year.”[54]  In a per curiam opinion, the Court found that both the contribution limits and the expenditure limits implicated fundamental First Amendment rights.[55]  The campaign finance restrictions inevitably involved constitutional concerns because money was necessary for “virtually every means of communicating ideas in today’s mass society.”[56]  Thus, “[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”[57]

However, the Buckley decision created tension in the campaign finance scheme.  This result was “unsurprising given that it was drafted by a committee of Justices who did not agree on the fundamental issue of how to balance First Amendment rights of free speech and association with state interests.”[58]  Therefore, the Supreme Court created an important compromise when it distinguished between the severity of the interests implicated by campaign contributions and campaign expenditures.[59]  The Court found that “expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech.”[60]  In fact, the primary effect of FECA’s expenditure limits was to limit political expression by restricting the amount of political speech made by candidates.[61]  Thus, because expenditure limits are at the core of First Amendment freedoms, courts should review such statutes using strict scrutiny.[62]  Strict scrutiny requires that the statute “furthers a compelling interest and is narrowly tailored to achieve that interest.”[63]  Under this standard, the Court struck down the FECA’s expenditure limit and held that it was unconstitutional.[64]

In contrast, the Court considered a limitation on campaign contributions only a marginal restriction on First Amendment rights.[65]  The Court noted that a contribution limit still “permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.”[66]  Expression is only marginally restricted because “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.”[67]  Essentially, because a contribution to a candidate does not detail the contributor’s rationale behind supporting a candidate, it is merely a general expression of support.[68]  Thus, the Court ruled that “[e]ven a ‘significant interference with protected rights of political association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.”[69]

Using this closely drawn scrutiny, the Court held that FECA’s contribution limit was constitutional under the First and Fourteenth Amendments.[70]  The Court found that the government had three sufficiently important interests in creating the $1000 limit.  First, the primary interest was the “prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.”[71]  Second, the limits helped “equalize the relative ability of all citizens to affect the outcome of elections.”[72]  Finally, the limits acted “as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money.”[73]  These government interests were also closely drawn because the statute dealt with the aspects of political association in which corruption and the potential for corruption were identified; people, however, were still free to engage in other political expressions such as volunteering.[74]

Since Buckley, “[t]his persistent distinction—with expenditures constituting express advocacy and contributions being subject to substantial regulation, and other expenditures being relatively free, has coexisted with substantial disagreements between the Court’s regulatory proponents and regulatory skeptics regarding the nature of the State’s interest in regulating campaign contributions and expenditures.”[75]  In 2000, the Supreme Court confirmed Buckley’s dual-scrutiny framework in Nixon v. Shrink Missouri Government PAC.[76]  First, the Court differentiated between expenditure limits and contribution limits because of their impact on the First Amendment’s right to freedom of speech.  The Court stated that it “drew a line between expenditures and contributions, treating expenditure restrictions as direct restraints on speech, which nonetheless suffered little direct effect from contribution limits . . . .  We thus said, in effect, that limiting contributions left communication significantly unimpaired.”[77]  Second, the Court differentiated between expenditure limits and contribution limits because of their impact on the First Amendment’s right to freedom of association.[78]  The Court noted that, “[w]hile an expenditure limit ‘precludes most associations from effectively amplifying the voice of their adherents,’ the contribution limits ‘leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.’”[79]  Due to the different effects on First Amendment rights, the Court confirmed Buckley’s use of strict scrutiny for campaign expenditure limits and closely drawn scrutiny for campaign contribution limits.

Three years later, in 2003, the Supreme Court ruled on a statute that made it unlawful for any corporation to make a campaign contribution or expenditure in connection with certain federal elections in FEC v. Beaumont.[80]  The purpose of this ban was to prevent “corporate earnings from turning into political ‘war chests’” and “preven[t] corruption or the appearance of corruption.”[81]  The Court upheld this contribution ban using Buckley’s lower level of review, closely drawn scrutiny.  The Court stated that “[g]oing back to Buckley v. Valeo, restrictions on political contributions have been treated as merely ‘marginal’ speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.”[82]  Even though the statute at issue was a contribution ban, and not just a contribution limit of a type similar to that upheld in Buckley, the Court still found that “[i]t is not that the difference between a ban and a limit is to be ignored; it is just that the time to consider it is when applying scrutiny at the level selected, not in selecting the standard of review itself.”[83]

The Supreme Court decided a second campaign finance case in 2003, McConnell v. FEC.[84]  There, the statute at issue prohibited individuals seventeen and younger from making contributions both to candidates and to political parties.[85]  In determining the constitutionality of this statute, the Court first reiterated that contribution limits implicate the First Amendment freedoms of expression and association.[86]  Then, the Court applied Buckley’s closely drawn scrutiny because the provision was a campaign contribution ban.[87]  The government, however, had only offered scant evidence to advance its interest in preventing corruption by conduit, and the Court found that other states had adopted more tailored approaches to fixing this problem of actual and potential corruption.[88]  Instead of banning all contributions to candidates, other states prohibited contributions by very young children, considered all contributions from a family as a unit, or imposed a limit on contributions by minors.[89]  Thus, the Court struck down the ban as unconstitutional under closely drawn scrutiny, holding that the provision was overbroad.[90]

In 2006, the Supreme Court struck down a Vermont campaign contribution limit in Randall v. Sorrell.[91]  These contribution limits were very low—a person could not contribute more than $400 to a governor candidate, $300 to a state senator candidate, and $200 to a state representative candidate.[92]  In finding these limitations unconstitutional, the Court enumerated multiple reasons.  First, the “contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns.”[93]  Such low contribution limits present a problem in elections because they magnify the incumbent’s advantage and place the challenger at a significant disadvantage.[94]  Second, the limits were not adjusted for inflation.[95]  Finally, there were no special justifications to warrant these low contribution limits.[96]  Thus, using Buckley’s closely drawn scrutiny, the Court found that Vermont’s contribution limits were unconstitutional under the First and Fourteenth Amendments.

The Court revisited the constitutionality of campaign finance laws in 2010 with one of the most recent controversial Supreme Court cases, Citizens United v. FEC.[97]  In that case, the plaintiffs challenged “[2 U.S.C.] § 441b’s ban on corporate-funded independent expenditures,” which subjected the corporation to civil and criminal penalties.[98]  The Court struck down this statute as violating corporations’ First Amendment rights.  As a general statement, the Court noted that “laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’”[99]  However, even though the Court made this broad statement about laws that burden political speech, it still found that “Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”[100]  In light of these two opposing statements, lower courts began to question whether the Court had blurred or destroyedBuckley’s dual-scrutiny framework of using strict scrutiny for campaign expenditure limits and closely drawn scrutiny for campaign contribution limits.

In 2011, one year after its controversial decision in Citizens United, the Supreme Court again ruled on campaign finance in Arizona Free Enterprise Club’s Freedom PAC v. Bennett.[101]  In that case, the plaintiffs challenged the constitutionality of a state campaign finance law that matched funds.[102]  Although the general statement in Citizens United might have suggested that all types of campaign finance laws should be reviewed using strict scrutiny, instead of using Buckley’s dual-scrutiny framework, the Court rejected this view.[103]  The Court again recognized the two separate levels of scrutiny, saying:

[W]e have subjected strictures on campaign-related speech that we have found less onerous to a lower level of scrutiny and upheld those restrictions.  For example, after finding that the restriction at issue was “closely drawn” to serve a “sufficiently important interest,” we have upheld government-imposed limits on contributions to candidates . . . .[104]

III.  Analysis

In Preston v. Leake, the Fourth Circuit dealt with an issue of first impression regarding the constitutionality of North Carolina’s campaign finance laws.  The Campaign Contributions Prohibition bans lobbyists from contributing any amount of money to candidates for certain state offices.  Thus, when Preston challenged the prohibition under the First and Fourteenth Amendments, the initial issue the Fourth Circuit decided was what level of scrutiny to use when reviewing this statute—strict scrutiny or closely drawn scrutiny.

A.     The Inconsistency of Fourth Circuit Precedent

Between 1999 and the 2011 Preston decision, the Fourth Circuit ruled on two other cases involving the constitutionality of North Carolina campaign finance statutes.  However, in these cases, decided approximately ten years apart, the Fourth Circuit used different language to describe the level of scrutiny it used to review each statute’s constitutionality.  Thus, in Preston v. Leake, the Fourth Circuit was challenged with interpreting this precedent and determining the appropriate level of scrutiny to apply to North Carolina’s Campaign Contributions Prohibition.

The first case, decided by the Fourth Circuit in 1999, was North Carolina Right to Life, Inc. v. Bartlett.[105]  There, North Carolina Right to Life challenged a North Carolina campaign finance provision that prohibits lobbyists from contributing to candidates and members of the General Assembly and Council of State while the General Assembly is in session.[106]  The Fourth Circuit upheld this restriction using the language of strict scrutiny review.[107]  The Fourth Circuit noted that the state had a “compelling interest” in preventing actual corruption and the appearance of corruption.[108]  Additionally, the court found that the government’s means were “narrowly tailored” to that compelling governmental interest because the statute was limited to a certain group of people, lobbyists, and had a temporal limitation that restricted the ban to only a few months during an election year.[109]

In contrast, the Fourth Circuit used different scrutiny language to strike down provisions of North Carolina’s campaign finance laws in North Carolina Right to Life, Inc. v. Leake.[110]  At issue in that 2008 case was a statute creating a contribution limit of $4000 from independent expenditure committees.[111]  The Fourth Circuit held that this statute was essentially a contribution limit and should be reviewed under Buckley’s closely drawn standard, noting that “a state may limit campaign contributions if the limits are ‘closely drawn’ and the state demonstrates that the limits support its interest in preventing corruption and the appearance thereof.”[112]  Because the Fourth Circuit concluded it was implausible that these contributions actually had a corrupting influence on the state, the Fourth Circuit struck down this law as unconstitutional using closely drawn scrutiny.[113]

This Fourth Circuit precedent provided little guidance in deciding what level of scrutiny should be applied to the Campaign Contributions Prohibition in Preston v. Leake.  Although Bartlett was decided after the Supreme Court’s decision in Buckley, it did not use Buckley’s dual-scrutiny framework.  The statute at issue was clearly a contribution limit and therefore should have been reviewed under closely drawn scrutiny.  The Fourth Circuit, however, explicitly used the language of strict scrutiny by saying that the statute would be upheld if the government had a compelling end and narrowly tailored means.  Therefore, the Bartlett decision appears to support Preston’s argument that campaign contribution statutes should be reviewed using strict scrutiny.  Still, under strict scrutiny review, statutes are usually categorically struck down as unconstitutional.[114]  And notably, the Fourth Circuit upheld the statute in Bartlett as constitutional, even though it used strict scrutiny language.  Thus, while the Fourth Circuit did not use the correct language denoted in Buckley, in actuality, the court appropriately applied the correct, less-searching level of scrutiny.  Furthermore, about ten years later, the Fourth Circuit followed Buckley’s dual-scrutiny framework to decide Leake.  In that case, the circuit court expressly used the language of closely drawn scrutiny to strike down a North Carolina campaign contribution statute.

The important difference between these two Fourth Circuit cases was the Supreme Court precedent during the nearly ten years in between Bartlett (1999) and Leake(2008).  Although, in 1976, the Supreme Court held that contribution limits should be reviewed using closely drawn scrutiny and expenditure limits should be reviewed using strict scrutiny, the Fourth Circuit did not apply this dual-scrutiny framework as late as 1999.  Instead, Buckley’s framework became the obvious standard in the early 2000s when the Supreme Court ruled on cases that reaffirmed Buckley.  Some of the Court’s cases that clearly delineated the two different levels of scrutiny used to review campaign finance provisions included Nixon v. Shrink Missouri Government PAC,[115] FEC v. Beaumont,[116] and McConnell v. FEC.[117]

Another reason why the Fourth Circuit might have mistakenly used the language of strict scrutiny in Bartlett is because it focused too heavily on the fact that the statute contained a legislative session ban.  Generally courts apply strict scrutiny to legislative session bans and categorically strike them down as unconstitutional.[118]  However, these legislative session bans are usually found constitutional if they apply only to a small group, such as lobbyists.[119]  At their essence, these are campaign contribution limits and should be reviewed under closely drawn scrutiny.[120]  Thus, although the Fourth Circuit precedent in Bartlett and Leake confused which level of scrutiny to apply to campaign contributions, the Campaign Contributions Prohibition should be reviewed using closely drawn scrutiny in accordance with Supreme Court precedent.

B.     A Narrow Interpretation of Citizens United

One of the main questions posed by commentators regarding the Fourth Circuit’s decision in Preston v. Leake is how the Supreme Court would react to the Fourth Circuit upholding North Carolina’s Campaign Contributions Prohibition under closely drawn scrutiny.[121]  Since the 2010 Citizens United decision, courts have outwardly struggled to interpret the Supreme Court’s phrase that “[l]aws that burden political speech are ‘subject to strict scrutiny.’”[122]  The issue is whetherCitizens United abolished Buckley’s dual-scrutiny framework or whether Buckley’s framework remains good law.  If Buckley is still applicable, campaign contribution statutes should continue to be reviewed using the less-exacting closely drawn scrutiny standard.  However, if the phrase in Citizens United is read according to its plain meaning, campaign contribution statutes should be reviewed using strict scrutiny.  And under strict scrutiny, courts almost universally strike down such statutes as unconstitutional.[123]  If courts were to broadly interpret this phrase in Citizens United, it would have a vast impact on the constitutionality of campaign finance regulations.  Therefore, “cases testing the boundaries of the Supreme Court’s ruling [in Citizens United] began winding their way through the courts shortly after the decision was announced in January 2010.”[124]

Circuit courts took notice of the Supreme Court’s broad generalization in Citizens United and struggled to interpret its effect upon Buckley’s framework.  For example, the Second Circuit noted that the “Court’s campaign-finance jurisprudence may be in a state of flux.”[125]  Additionally, the Ninth Circuit questioned the effect of the Citizens United decision by saying that “[i]t is unclear whether this unqualified statement is the death knell for closely drawn scrutiny or whether it was intended only to reaffirm the long standing principle that expenditure limitations, like those at issue in Citizens United, are subject to strict scrutiny.”[126]  Also recognizing this problem, the Seventh Circuit explicitly applied closely drawn scrutiny to a similar statute.[127]  The court, however, covered both of its bases by saying that “we believe [the statute] survives under either standard.”[128]

Although the Supreme Court’s overbroad phrase in Citizens United implied that all campaign finance provisions should be reviewed under strict scrutiny, this generalized statement was a miscalculation by the Court.  First, further into the Citizens United opinion, when speaking directly to the decision’s impact on campaign contribution limits, the Court backtracked on its broad generalization.  There, the Court noted that “Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”[129]  Thus, in that same opinion, the Court indicated that Buckley’s dual-scrutiny framework was not under review and should remain in place.

Second, in Bennett, a Supreme Court case decided one year after Citizens United, the Court reiterated Buckley’s dual-scrutiny framework.[130]  In this way, the Supreme Court itself indicated that Citizens United was not intended to alter Buckley’s framework.  Thus, the general proposition announced by the Court in Citizens United should not be read broadly.  Instead, it should be narrowly interpreted so as to keep Buckley’s dual-scrutiny framework in place.

Although courts have questioned which level of scrutiny to use in campaign contribution cases after Citizens United, the Second, Fifth, Seventh, and Ninth Circuits have held that Buckley’s dual-scrutiny framework remains good law.  For example, in Green Party of Connecticut v. Garfield,[131] the Second Circuit acknowledgedCitizens United’s generalized statement.[132]  However, the Second Circuit ruled that the closely drawn scrutiny of Buckley remained applicable.  It reasoned that “in the recent Citizens United case, the Court overruled two of its precedents and struck down a federal law banning independent campaign expenditures by corporations, but it explicitly declined to reconsider its precedents involving campaign contributions by corporations to candidates for elected office.”[133]  Thus, the court reviewed a ban on contractors making contributions to candidates for state office and a ban on lobbyists making contributions to state office under closely drawn scrutiny.[134]

Additionally, in a 2011 decision, Ognibene v. Parkes,[135] the Second Circuit reviewed campaign finance statutes that contained “doing business” contribution limits, nonmatching provisions, and entity bans.[136]  The circuit court upheld all of these statutes as constitutional using Buckley’s closely drawn scrutiny.[137]  Regarding Citizens United, the court concluded that “[s]ince the Supreme Court preserved the distinction between expenditures and contributions, there is no basis for Appellants’ attempt to broaden Citizens United.  Appellants’ selective and misleading quotes carefully skip over the Court’s clear distinction between limits on expenditures and limits on contributions.”[138]

The Fifth Circuit, in a 2010 decision, also held that the court should review a statute that imposed contribution limits under closely drawn scrutiny in In re Cao v. FEC.[139]  In that case, the statute imposed a contribution limit of $5000 on political parties.[140]  The court rejected the plaintiff’s argument that Citizens Unitedshould change the analysis of contribution limits on political parties.[141]  Instead, the court found that “the Supreme Court’s decision in Citizens United—regarding a corporation’s right to make independent expenditures—provides no reason to change our analysis of the validity of the contribution limits FECA places on political parties and PACs.”[142]  Thus, under closely drawn scrutiny, the court upheld these contribution limits.[143]

Furthermore, in 2010, the Seventh Circuit decided to use Buckley’s closely drawn scrutiny in Siefert v. Alexander.[144]  In that case, the Wisconsin Judicial Code of Conduct banned personal solicitation of campaign contributions made by judges or judicial candidates.[145]  The court found that this solicitation ban was essentially regulating campaign finance and should be reviewed using Buckley’s dual-scrutiny framework because “Citizens United, rather than overruling Buckley, noted and reinforced the distinction between independent expenditures on behalf of candidates and direct contributions to candidates.”[146]  The circuit court, however, did hedge its decision by noting that even if strict scrutiny should be applied, the provision was still constitutional.[147]

In 2011, the Ninth Circuit dealt with this same issue in Thalheimer v. City of San Diego.[148]  There, the court concluded:

[T]he Citizens United Court’s disapproval of Austin came in the context of regulating political expenditures, not contributions.  The Court made clear that it was not revisiting the long line of cases finding anti-corruption rationales sufficient to support such limitations.  Therefore, there is nothing in the explicit holdings or broad reasoning of Citizens United that invalidates the anti-circumvention interest in the context of limitations on direct candidate contributions.[149]

Like the circuit court decisions, the Colorado Supreme Court interpreted the general phrase in Citizens United to maintain Buckley’s dual-scrutiny framework.  InDallman v. Ritter,[150] government contract holders had to contractually agree to not make campaign contributions to a candidate for a state elected office for two years.[151]  The court upheld Buckley’s closely drawn scrutiny and noted that “[t]he Supreme Court decision in Citizens United addressed only expenditure limits and disclosure requirements; thus, it does not control our analysis of Amendment 54’s contribution limits.”[152]

Before the Fourth Circuit decided Preston, four circuit courts had reviewed the language contained in Citizens United’s generalized statement and determined that it did not discard Buckley’s dual-scrutiny framework.  These courts noted that the Supreme Court in Citizens United did not rule on contribution limits or expressly overrule the Buckley framework, and portions of the Court’s opinion could not be read selectively.  Thus, the Fourth Circuit correctly found that the Campaign Contributions Prohibition should be reviewed under closely drawn scrutiny.  The decision in Preston interpreted the Citizens United decision so that it did not have a broad impact upon campaign finance adjudication.  Instead, the Supreme Court, circuit courts, and state courts have all held that Citizens United should be narrowly interpreted so that it does not affect the status quo established by Buckley regarding closely drawn scrutiny.

C.     The Difference Between a Contribution Limit and a Contribution Ban

Additionally, even though the North Carolina Campaign Contributions Prohibition is a contribution ban, instead of a contribution limit, it should be reviewed under closely drawn scrutiny.  In Buckley, the Supreme Court held that a contribution limitation was subject to closely drawn scrutiny.  However, the North Carolina statute enforces a contribution ban on lobbyists, not just a contribution dollar limit.  Thus, Preston argued that a “complete ban on campaign contributions ‘restricts direct speech rights of would-be contributors that lie at the core of political expression’ and thus ‘demand[s] strict scrutiny.’”[153]  A contribution ban does not allow the contributor to retain any means of symbolic expression.[154]  Therefore, the ban “disallows ‘the symbolic and expressive act of contributing in the first place,’ so that the ban is a ‘direct restraint on political communication,’ which is therefore subject to strict scrutiny.”[155]

Still, the Supreme Court has upheld a complete ban using Buckley’s closely drawn standard of review.  In Beaumont, the challenged statute made it unlawful for a corporation to make a contribution from some federal elections.[156]  Thus, it was essentially a contribution ban on corporations.  In addressing the question of which standard of review to use, the Court noted that a contribution ban was distinct from a contribution limit.  However, “it is not that the difference between a ban and a limit is to be ignored; it is just that the time to consider it is when applying scrutiny at the level selected, not in selecting the standard of review itself.”[157]  Therefore, the Fourth Circuit followed Supreme Court precedent that contribution limits and contribution bans should be reviewed using less-searching scrutiny.

Still, North Carolina’s Campaign Contributions Prohibition can be distinguished from the ban in Beaumont.  North Carolina’s statute directly forbids individuals from making contributions, while the statute in Beaumont only forbade the corporation from making contributions and left individual members of the corporation free to make contributions.  Other courts, however, have followed Beaumont’s lead and ruled that even a contribution ban that applies to individuals should be reviewed using closely drawn scrutiny.  For example, in Garfield, the statute imposed a ban on contractors and lobbyists making contributions to candidates for state office in Connecticut.[158]  In that case, the Second Circuit used closely drawn scrutiny to uphold the ban for contractors but strike down the ban for lobbyists.[159]  The Second Circuit rejected applying “strict scrutiny because the provisions at issue here are bans, as opposed to mere limits.  Such an argument was explicitly rejected inBeaumont.”[160]  Instead, the Second Circuit followed Beaumont’s lead by reviewing the ban in connection with whether the statute was closely drawn to an important government interest.  Thus, in striking down the ban against lobbyists, the Second Circuit emphasized how a ban was too restrictive and thus did not meet the closely drawn standard.

The Supreme Court of Louisiana ruled on the same issue when the state passed a statute that prohibited riverboat and land-based casino industries from making campaign contributions in Casino Ass’n of Louisiana v. State ex rel. Foster.[161]  There, the court upheld these bans using closely drawn scrutiny and noted that “there is no indication in Buckley that a contribution limit of zero, as opposed to a contribution limit of $1,000.00, would be unconstitutional.”[162]  Thus, “the fact that the campaign contribution ban found in [the statute] is a prohibition on contributions, rather than a limitation, does not render it per se unconstitutional underBuckley.  Instead, the restriction is to [be] analyzed under the burden of proof enunciated in Buckley.”[163]

Therefore, although the North Carolina Campaign Contributions Prohibition imposes a ban on lobbyist contributions instead of a limit on lobbyist contributions, it should still be reviewed under closely drawn scrutiny.  The Supreme Court laid this foundation in Beaumont when it considered a ban on corporations using closely drawn scrutiny.  And although Beaumont dealt with a corporate ban, neither the Second Circuit nor the Supreme Court of Louisiana distinguished between the corporate ban in Beaumont and the individual bans in Garfield and Casino Ass’n of Louisiana.

D.    The Impact of the Constitutionality of the Campaign Contributions Prohibition

One of the biggest impacts of the Fourth Circuit’s decision in Preston v. Leake is that it provides a constitutionally sound model for other states to impose contribution bans on lobbyists or other groups.[164]  However, looking forward, if North Carolina’s Campaign Contributions Prohibition is used as a model, additional constitutional questions will be raised.  One issue with this prototype is whether a similar ban on lobbyists or another group would be constitutional if the state did not have a history of corruption.

For example, in Garfield, Connecticut implemented the Campaign Finance Reform Act (“CFRA”), which banned individual contractors and lobbyists from making contributions to candidates for state office.[165]  The Second Circuit upheld the ban on contractors but struck down the ban on lobbyists.[166]  Regarding the ban on contractors, the court found:

[T]he Connecticut General Assembly enacted the CFRA’s ban on contractor contributions in response to a series of scandals in which contractors illegally offered bribes, “kick-backs,” and campaign contributions to state officials in exchange for contracts with the state.  The ban was designed to combat both actual corruption and the appearance of corruption caused by contractor contributions.[167]

Thus, the ban on contractors was sufficiently closely drawn to the state’s interest in preventing corruption and the appearance of corruption.

In contrast, the court noted that none of Connecticut’s recent corruption scandals involved lobbyists.[168]  Therefore, the state did not need to use a complete ban on lobbyist contributions; instead, the statute should have had a limiting exception in the form of a contribution limit.  The court emphasized:

Accordingly, there is insufficient evidence to demonstrate that all lobbyist contributions give rise to an appearance of corruption, and the evidence demonstrating that lobbyist contributions give rise to an appearance of “influence” has no bearing on whether the CFRA’s ban on lobbyist contributions is closely drawn to the state’s anticorruption interest.  We conclude, as a result, that on this record, a limit on lobbyist contributions would adequately address the state’s interest in combating corruption and the appearance of corruption on the part of lobbyists.[169]

Whether or not there was actual corruption in the state regarding lobbyists is how the Fourth Circuit distinguished the North Carolina statute in Preston from the court’s holding in Garfield.[170]  Thus, for a state to use Preston as a model of a constitutional campaign contribution ban, the state might have to have a history of corruption.  If not, then to pass closely drawn scrutiny, the statute might have to have limiting exceptions.

States generally use two types of limiting exceptions in campaign contribution statutes.  First, the state may create a limiting exception by only enforcing a contribution limit or a ban during a certain time period.  The purpose of such limits is to “prevent the flow of money to candidates during time periods when contributions pose a unique threat of actual or apparent corruption.”[171]  These temporal limits can be during pre-election, legislative-session, off-year, or postelection periods.[172]  Commonly, these statutes are limited to when the legislature is in session.  There is a greater issue regarding corruption or the appearance of corruption during legislative sessions because legislators are making decisions that may affect their campaign contributors.[173]  For example, in Bartlett, the Fourth Circuit noted that the state’s campaign finance reform scheme only prohibited lobbyists from contributing to candidates for the North Carolina General Assembly and Council of State while the General Assembly was in session.[174]  Thus, the restriction was not overbroad because the North Carolina General Assembly was usually only in session for one or two months out of the year.[175]

Vermont had a similar statute that banned lobbyists from contributing to campaigns of members of the Vermont General Assembly when the legislature was in session.[176]  The Vermont Supreme Court upheld this ban, noting that the statute “functions solely as a timing measure, banning contributions to individual members only while the General Assembly is in session.”[177]  Thus, “the limited prohibition focuses on a narrow period during which legislators could be, or could appear to be, pressured, coerced, or tempted into voting on the basis of cash contributions rather than on consideration of the public weal.”[178]

A second method of imposing a limiting exception on a campaign contribution law is to restrict the limit or the ban based on the identity of the recipient.  For example, in California, a district court upheld a campaign finance regulation that only prohibited “a direct contribution by a lobbyist to an elected state officer or candidate for elected state office, if the lobbyist is registered to lobby the governmental agency for which the officeholder works or for which the candidate seeks election.”[179]  Thus, this provision was narrowly tailored because it did “not prohibit contributions by all lobbyists to all candidates.  Rather, [it] only prohibited contributions by lobbyists, if the lobbyist was registered to lobby the office for which the candidate sought election; that is, to those persons the lobbyist would bepaid to lobby.”[180]  Similarly, an Alaskan campaign contribution statute prohibited lobbyists from contributing to candidates in districts that were outside the district in which the lobbyist was eligible to vote.[181]  The Supreme Court of Alaska upheld this statute as constitutional because the lobbyists’ “professional purpose, coupled with their proximity to legislators during the legislative session, makes them particularly susceptible to the perception that they are buying access when they make contributions.  Based on this evidence, we conclude that the State had a compelling interest justifying some restraint on speech.”[182]

In total, the North Carolina Campaign Contributions Prohibition may serve as a prototype for other states of a constitutional campaign finance reform statute.  However, the constitutionality of such a reform statute might depend on whether there is a history of corruption within the state.  Therefore, for other states’ statutes to be constitutional, limiting exceptions on the time and identity of the recipient may be necessary.


In Preston v. Leake, the Fourth Circuit upheld the constitutionality of the North Carolina Campaign Contributions Prohibition, which bans lobbyists from making any type of monetary donations to certain state officials’ campaigns.  One of the main issues the court grappled with was what level of scrutiny was appropriate to apply to the statute.  If the court applied strict scrutiny, the ban would be categorically struck down.  However, if the court applied the less-searching, closely drawn scrutiny, the ban would likely be upheld.  In determining which level of scrutiny to use, the Fourth Circuit had to properly interpret its own precedent, a broad generalization by the Supreme Court in Citizens United, and whether there was a difference between a total ban as opposed to a limit.  Because the Campaign Contributions Prohibition was upheld as constitutional under closely drawn scrutiny, other states will probably use it as a model for creating their own contribution bans.  However, this could prove problematic depending on whether or not the state has an actual history of corruption.  Thus, in order for other states’ contribution limits or bans to be upheld as constitutional, they might have to impose some sort of limiting exceptions.

 *   J.D. Candidate, 2013, Wake Forest University School of Law.  The author would like to thank the members of the Wake Forest Law Review for their assistance with this Note, and her family for their love and support.

[1].   Michael Biesecker, Election Board Fines Perdue Campaign $30,000, News & Observer (Aug. 24, 2010, 12:43 PM),
/2010/08/24/645448/elections-board-fines-perdue-campaign.html; J. Andrew Curliss & Dan Kane, Easley Convicted of Felony; State, Federal Probes End, News & Observer (Nov. 24, 2010, 5:01 AM),
/11/24/822886/easley-convicted-of-felony-state.html; see also Preston v. Leake, 660 F.3d 726, 729–30 (4th Cir. 2011).

        [2].   Ronald M. Levin, Lobbying Law in the Spotlight: Challenges and Proposed Improvements, 63 Admin. L. Rev. 419, 424 (2011).

        [3].   Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 196 (2012) (citations omitted).

        [4].   Levin, supra note 2.

        [5].   Preston, 660 F.3d at 729.

        [6].   Id.

        [7].   Id.

        [8].   130 S. Ct. 876 (2010).

        [9].   Preston, 660 F.3d at 729.

      [10].   Id.

      [11].   N.C. Gen. Stat. § 163-278.13C(a) (2011).

      [12].   See id. § 163-278.6(6)(a).

      [13].   Preston v. Leake, 743 F. Supp. 2d 501, 505 (E.D.N.C. 2010), aff’d, 660 F.3d 726 (4th Cir. 2011).

      [14].   Id. at 505–06.

      [15].   Id. at 506.

      [16].   Preston, 660 F.3d at 731.

      [17].   Id. (citation omitted).

      [18].   Id. at 729 (citation omitted).

      [19].   Id. at 729–30 (noting that some of these recent corruption scandals involved “[f]ormer North Carolina Commissioner of Agriculture, Meg Scott Phipps.  Former Speaker of the North Carolina House of Representatives, Jim Black.  Former North Carolina Representatives, Michael Decker and Thomas Wright. . . .  Chiropractors, optometrists, high-profile registered lobbyist Don Beason, and others—including most recently the campaign committees of former governor Michael F. Easley and current governor Bev Perdue—have also been part of the corruption or appearance of corruption that has infected North Carolina’s state government in the past decade.” (quoting Brief of Appellee at 2, Preston, 660 F.3d 726 (2011) (No. 10-2294), 2011 WL 495924, at *2)).

      [20].   Id. at 729.

      [21].   Id. at 731.

      [22].   Id.

      [23].   Id. at 728.

      [24].   Id. at 732.

      [25].   Brief of Appellant at 16, Preston, 660 F.3d 726 (2011) (No. 10-2294), 2011 WL 107626, at *16.

      [26].   Id. at 20, 2011 WL 107626, at *20 (quoting Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010)).

      [27].   Id. at 23, 2011 WL 107626, at *23.

      [28].   Id. at 23–36, 2011 WL 107626, at *23–36.

      [29].   Id. at 26–27, 2011 WL 107626, at *26–27.

      [30].   Id. at 27, 2011 WL 107626, at *27.

      [31].   Id. at 29, 2011 WL 107626, at *29.

      [32].   Id. at 30–34, 2011 WL 107626, at *30–34.

      [33].   Preston v. Leake, 743 F. Supp. 2d 501, 511 (E.D.N.C. 2010), aff’d, 660 F.3d 726 (4th Cir. 2011).

      [34].   Preston v. Leake, 660 F.3d 726, 729 (4th Cir. 2011).

      [35].   Id. at 735.

      [36].   Id. at 733 (citing Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387 (2000)).

      [37].   Id. at 735 (quoting Citizens United v. FEC, 130 S. Ct. 876, 898 (2010)).

      [38].   Id. (citations omitted) (referencing several U.S. Supreme Court decisions).

      [39].   Id. at 736.

      [40].   Id.

      [41].   Id. at 737.

      [42].   Id.

      [43].   Id. at 739–41.

      [44].   Id. at 740.

      [45].   Id.

      [46].   Id.

      [47].   U.S. Const. amend. I.

      [48].   See NAACP v. Alabama, 357 U.S. 449, 460 (1958) (“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” (citations omitted)); Gitlow v. New York, 268 U.S. 652, 666 (1925) (“For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”).

      [49].   Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curium).

      [50].   Mills v. Alabama, 384 U.S. 214, 218 (1966).

      [51].   Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).

      [52].   424 U.S. at 1.

      [53].   Id. at 6.

      [54].   Id. at 7.

      [55].   Id. at 14.

      [56].   Id. at 19.

      [57].   Id.

      [58].   Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581, 585–86 (2011) (citing Richard L. Hasen, The Untold Drafting History of Buckley v. Valeo, 2 Election L.J. 241, 241 (2003)).

      [59].   Buckley, 424 U.S. at 20; Hasen, supra note 58, at 586.

      [60].   Buckley, 424 U.S. at 19.

      [61].   Id. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)).

      [62].   Id. at 28, 45–46.

      [63].   FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007) (citation omitted).

      [64].   Buckley, 424 U.S. at 51.

      [65].   Id. at 20.

      [66].   Id. at 20–21.

      [67].   Id. at 21.

      [68].   Id.

      [69].   Id. at 25 (citations omitted) (quoting Cousins v. Wigoda, 419 U.S. 477, 488 (1975)) (internal quotation marks omitted).

      [70].   Id. at 29.

      [71].   Id. at 25.

      [72].   Id. at 25–26.

      [73].   Id. at 26.

      [74].   Id. at 28.

      [75].   Richard M. Esenberg, The Lonely Death of Public Campaign Financing, 33 Harv. J.L. & Pub. Pol’y 283, 297 (2010).

      [76].   528 U.S. 377, 381–82 (2000).

      [77].   Id. at 386–87.

      [78].   Id. at 387.

      [79].   Id. (quoting Buckley, 424 U.S. at 22).

      [80].   539 U.S. 146, 149 (2003).

      [81].   Id. at 146 (alteration in original) (citations omitted) (quoting FEC v. Nat’l Conservative PAC, 470 U.S. 480, 496–97 (1985)).

      [82].   Id. at 161 (citation omitted).

      [83].   Id. at 162.

      [84].   540 U.S. 93 (2003), overruled by Citizens United v. FEC, 130 S. Ct. 876 (2010)).

      [85].   Id. at 231.

      [86].   Id. (citing Buckley v. Valeo, 424 U.S. 1 (1976) (per curium)).

      [87].   Id. at 232.

      [88].   Id.

      [89].   Id.

      [90].   Id.

      [91].   548 U.S. 230, 236 (2006).

      [92].   Id. at 238.

      [93].   Id. at 253.

      [94].   Id. at 248 (quoting Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 403–04 (2000) (Breyer, J., concurring)).

      [95].   Id. at 261.

      [96].   Id.

      [97].   130 S. Ct. 876 (2010).

      [98].   Id. at 888.

      [99].   Id. at 898 (citation omitted).

    [100].   Id. at 909.

    [101].   131 S. Ct. 2806 (2011).

    [102].   Id. at 2816.

    [103].   Id. at 2817.

    [104].   Id. (citations omitted).

    [105].   168 F.3d 705 (4th Cir. 1999).

    [106].   Id. at 709.

    [107].   Id. at 715.

    [108].   Id.

    [109].   Id. at 716.

    [110].   525 F.3d 274, 277 (4th Cir. 2008).

    [111].   Id. at 291 (citing N.C. Gen. Stat. § 163-278.13 (2007)).

    [112].   Id. (citing Buckley v. Valeo, 424 U.S. 1, 24–29 (1976)).

    [113].   Id. at 293.

    [114].   Jessica A. Levinson, Timing is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections, 55 St. Louis U. L.J. 853, 865 (2011).

    [115].   528 U.S. 377, 387 (2000) (“While we did not then say in so many words that different standards might govern expenditure and contribution limits affecting associational rights, we have since then said so explicitly in Federal Election Comm’n v. Massachusetts Citizens for Life, Inc.: ‘We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending.’  It has, in any event, been plain ever since Buckley that contribution limits would more readily clear the hurdles before them.”).

    [116].   539 U.S. 146, 161–62 (2003) (“Going back to Buckley v. Valeo, restrictions on political contributions have been treated as merely ‘marginal’ speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.  ‘While contributions may result in political expression if spent by a candidate or an association . . . , the transformation of contributions into political debate involves speech by someone other than the contributor.’  This is the reason that instead of requiring contribution regulations to be narrowly tailored to serve a compelling governmental interest, ‘a contribution limit involving significant interference with associational rights’ passes muster if it satisfies the lesser demand of being ‘closely drawn to match a sufficiently important interest.’” (citations omitted) (quoting Nixon, 528 U.S. at 378; Buckley, 424 U.S. at 21) (internal quotation marks omitted)).

    [117].   540 U.S. 93, 231–32 (2003) (“When the Government burdens the right to contribute, we apply heightened scrutiny.  We ask whether there is a ‘sufficiently important interest’ and whether the statute is ‘closely drawn’ to avoid unnecessary abridgment of First Amendment freedoms.” (citations omitted)), overruled byCitizens United v. FEC, 130 S. Ct. 876 (2010).

    [118].   Levinson, supra note 114.

    [119].   Id.

    [120].   See, e.g., Kimbell v. Hooper, 665 A.2d 44, 50–51 (Vt. 1995) (holding that the ban on soliciting and making contributions to individuals’ political campaigns while the General Assembly is in session is constitutional under Buckley’s closely drawn scrutiny).

    [121].   Robyn Hagan Cain, Contribution Prohibition Is Lawful Limit on Free Speech Rights, Findlaw: U.S. Fourth Circuit (Nov. 9, 2011, 3:07 PM),
-lawful-limit-on-free-speech-rights.html (“How would SCOTUS feel about the [sic] North Carolina’s closely drawn restriction on free speech rights?”); Fourth Circuit Upholds N.C.’s Restrictions Against Lobbyists’ Political Contributions, Beaufort Observer (Nov. 8, 2011),
-lobbyists-political-contributions.html (noting that “[f]or the legal academic [Preston v. Leake] becomes an interesting question of how the Supreme Court will deal with a decision of the Fourth Circuit that has become decidedly more liberal than the Supreme Court has been in recent years”).

    [122].   Citizens United, 130 S. Ct. at 898 (citation omitted).

    [123].   Levinson, supra note 114, at 859 (quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976)).

    [124].   Christine N. Walz, Campaigns Turn to Courts over Political Advertising, 28 Comm. Law. 3, 3 (2011) (citations omitted).

    [125].   Green Party of Conn. v. Garfield, 616 F.3d 189, 199 (2d Cir. 2010).

    [126].   Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 691–92 n.4 (9th Cir. 2010) (noting that the court did not even reach the issue saying, “[w]e need not read tea leaves to decide this appeal, however, because, as shown below, the LBCRA is unconstitutional as applied to the Chamber PACs under either ‘closely drawn’ or ‘strict’ scrutiny”).

    [127].   Siefert v. Alexander, 608 F.3d 974, 988–89 (7th Cir. 2010).

    [128].   Id. at 989.

    [129].   Citizens United v. FEC, 130 S. Ct. 876, 909 (2010).

    [130].   See supra notes 101–04 and accompanying text.

    [131].   616 F.3d 189 (2d Cir. 2010).

    [132].   Id. at 199 (citing Citizens United, 130 S. Ct. at 909).

    [133].   Id. (citing Citizens United, 130 S. Ct. at 909).

    [134].   Id.

    [135].   671 F.3d 174 (2d Cir. 2011), cert. denied, No. 11-1153, 2012 WL 950086 (U.S. June 25, 2012).

    [136].   Id. at 177–78, 185–96.

    [137].   Id. at 185–96.

    [138].   Id. at 184.

    [139].   619 F.3d 410, 422–23 (5th Cir. 2010), cert. denied, 131 S. Ct. 1718 (2011).

    [140].   Id. at 421.

    [141].   Id. at 422.

    [142].   Id. at 423.

    [143].   Id.

    [144].   608 F.3d 974, 988 (7th Cir. 2010).

    [145].   Id.

    [146].   Id. (citations omitted).

    [147].   Id. at 989.

    [148].   645 F.3d 1109 (9th Cir. 2011).

    [149].   Id. at 1124–25 (citations omitted).

    [150].   225 P.3d 610 (Colo. 2010).

    [151].   Id. at 616.

    [152].   Id. at 622 (citing Citizens United v. FEC, 130 S. Ct. 876, 909 (2010)).

    [153].   Preston v. Leake, 660 F.3d 726, 732 (4th Cir. 2011).

    [154].   Id.

    [155].   Id.

    [156].   FEC v. Beaumont, 539 U.S. 146, 149 (2003).

    [157].   Id. at 162.

    [158].   Green Party of Conn. v. Garfield, 616 F.3d 189, 194 (2d Cir. 2010).

    [159].   Id. at 212.

    [160].   Id. at 199 (citing Beaumont, 539 U.S. at 162).

    [161].   820 So. 2d 494, 496 (La. 2002).

    [162].   Id. at 502.

    [163].   Id. at 504.

    [164].   Lobbyists Beware: Political Contribution Ban a Model for Federal Elections?, Bracewell & Giuliani  (Nov. 14, 2011),
-political-contribution-ban-model-federal-elections (“While this North Carolina state ban has no direct effect on federal elections, or other state elections, it is a model that many regulators and commentators have expressed support for.  One can expect both state and federal efforts to enact new regulations further limiting a lobbyist’s opportunity to fully participate in the electoral process.”).

    [165].   Garfield, 616 F.3d at 194.

    [166].   Id. at 212.

    [167].   Id. at 199–200 (citation omitted).

    [168].   Id. at 205.

    [169].   Id. at 207.

    [170].   Preston v. Leake, 660 F.3d 726, 737 (4th Cir. 2011) (citing Garfield, 616 F.3d at 195–96, 207).

    [171].   Levinson, supra note 114, at 855 (citing State v. Alaska Civil Liberties Union, 978 P.2d 597, 619 (Alaska 1999)).

    [172].   Id. (citing Alaska Civil Liberties Union, 978 P.2d at 628–30).

    [173].   Id. at 865.

    [174].   N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 714 (4th Cir. 1999).

    [175].   Id.

    [176].   Kimbell v. Hooper, 665 A.2d 44, 46 (Vt. 1995).

    [177].   Id. at 91.

    [178].   Id.

    [179].   Inst. of Gov’t Advocates v. Fair Political Practices Comm’n, 164 F. Supp. 2d 1183, 1186 (E.D. Cal. 2001).

    [180].   Id. at 1190.

    [181].   State v. Alaska Civil Liberties Union, 978 P.2d 597, 617 (Alaska 1999).

    [182].   Id. at 619.

By: Glen Hudson*

“It is money! . . .  Money!  Money!  Not ideas, nor principles, but money that reigns supreme in American politics.”[1]

Campaign spending in the 2010 midterm election cycle hit record levels following a string of United States Supreme Court rulings on campaign finance,[2] includingCitizens United v. FEC[3] and Davis v. FEC.[4]  Candidates, political parties, and outside groups spent four billion dollars in the midterm election—more than had been spent in any previous midterm election cycle—and the record spending in 2010 is likely to be trumped in 2012.[5]  Overall spending by candidates in 2012 is predicted to exceed eight billion dollars.[6]

Thus, the Supreme Court’s statement, back in 1976, that “[t]he increasing importance of the communications media . . . make[s] the raising of large sums of money an ever more essential ingredient of an effective candidacy,” is even more true today, almost twenty-five years later.[7]  As one author explained, “The need to spend large amounts of money in political campaigns is driven by the cost of mass communications.” [8]

The crucial importance of money in elections contributes to an appearance of corruption in politics.  The Supreme Court recognized the potential for corruption back in 1976 when it explained in Buckley v. Valeo that “[t]o the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system . . . is undermined.”[9]

One response to combating political corruption is public financing.  In Buckley v. Valeo, the Supreme Court upheld, in part, the constitutionality of a public financing system, explaining that public financing serves “as a means of eliminating the improper influence of large private contributions . . . .”[10]  The underlying principle of public financing is that “an increase in public funding will lessen the influence of private money in politics, decrease the amount of time that candidates spend fundraising, and expand political access for groups who traditionally have not had access to well-established fundraising networks.”[11]

In the wake of Buckley, many states enacted public financing systems to reduce the importance of private fundraising.  For example, in the mid-nineties, Maine[12] and Arizona[13] passed “two of the most comprehensive and ambitious” “Clean Elections” statutes in history.[14]  These statutes provided “voluntary systems of full public funding of election campaigns for state offices, coupled with lowered campaign contribution limits for those who opt not to participate in the public funding system . . . .”[15]  Additionally, in 2002, North Carolina passed a public finance statute for the state’s judicial elections.[16]

Despite the lofty goals proponents of public financing have for combating corruption, those goals can only be achieved if candidates actually participate in the system.  As the amount of money it takes to win an election keeps hitting new highs, public financing, which subjects participants to expenditure limitations, becomes less attractive to serious candidates who may not be able to compete with their privately financed opponents.

In an effort to attract candidates, many states began structuring public finance statutes to include “trigger” (or “rescue” or “matching”) funds.[17]  These funds are designed to enable a publicly financed candidate to receive additional funds once her self-financed opponent’s spending exceeds a certain threshold.

The constitutionality of trigger funds was at issue in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.[18]  Several past and future candidates for Arizona state offices filed suit and argued that “the matching funds provision unconstitutionally penalized their speech and burdened their ability to fully exercise their First Amendment rights.”[19]  In other words, but for the trigger-funding provision, the candidates would have spent more money on campaigns.

In Arizona Free Enterprise, the Supreme Court held that the trigger-funding provisions in Arizona’s Clean Elections statute were unconstitutional because the provisions imposed a substantial burden on free speech and were not justified by a sufficiently compelling government interest.[20]

Although the Court did not declare public financing as a concept unconstitutional, since the Court’s decision there have been challenges to the constitutionality of similar statutes across the country, including in North Carolina.[21]  This Note explores the future of public financing in the aftermath of Arizona Free Enterprise and suggests that a small-donor public matching financing program provides a possible alternative to traditional, and now unconstitutional, trigger-funding-based public financing programs.

Part I of this Note discusses the birth of modern campaign finance reform and the Supreme Court’s decision in Buckley v. Valeo.  Part II describes the history of traditional public financing statutes and trigger-funding provisions prior to Arizona Free Enterprise, focusing on challenges to those statutes.  Part III explains the background of Arizona Free Enterprise and the Supreme Court’s ruling in the case, focusing in particular on why the Supreme Court declared trigger funds unconstitutional.  Finally, Part IV analyzes the implications of Arizona Free Enterprise on the future of public financing and suggests that a small-donor public matching financing program may serve as a viable alternative to traditional, trigger-funding-based programs.

I.  Buckley and the Birth of Modern Campaign Finance

In 1974, in response to the corruption of the Watergate scandal, Congress amended the Federal Election Campaign Act of 1971 (“FECA”) to create comprehensive campaign reform.[22]  The FECA amendments, in part, introduced limits on the size of campaign contributions and expenditures, and created a system of public financing for presidential campaigns.[23]  Two years later, various organizations, candidates for political office, and political parties challenged the constitutionality of those amendments, claiming that several provisions of the Act infringed on their First Amendment rights.[24]

In Buckley v. Valeo, a decisive case in modern campaign finance reform, the Supreme Court held that (1) provisions limiting expenditures by candidates on their own campaigns were unconstitutional;[25] (2) provisions limiting campaign contributions were constitutional;[26] and (3) the presidential public financing system was constitutional.[27]

First, the Court held that expenditure limits by candidates were unconstitutional because they represented “substantial rather than merely theoretical restraints on the quantity and diversity of political speech.”[28]  The Court explained that expenditure limits curtail political expression, which is “at the core of our electoral process and of the First Amendment freedoms,”[29] and that “equalizing the relative financial resources of candidates competing for elective office . . . is clearly not sufficient to justify . . . infringement of fundamental First Amendment rights.”[30]

Second, the Court upheld the constitutionality of contribution limits, finding that they only impose a “marginal restriction upon the contributor’s ability to engage in free communication.”[31]  The Court explained that “[a] limitation on the amount of money a person may give . . . involves little direct restraint on his political communication . . . but does not in any way infringe the contributor’s freedom to discuss candidates and issues.”[32]  The Court held that preventing corruption was a government interest legitimate enough to justify imposing contribution limits under intermediate scrutiny.[33]

Third, and most relevant to this Note, the Court also upheld a presidential public financing system, including a provision allowing campaign expenditures to be restricted as a condition of a candidate voluntarily accepting public funds.[34]  Appellants argued that public financing should be struck down claiming it was “contrary to the ‘general welfare’ . . . because any scheme of public financing of election campaigns is inconsistent with the First Amendment . . . .”[35]  The Court disagreed andidentified three interests properly served by public funding: “(1) facilitating speech, not abridging it; (2) eliminating the improper influence of large contributions; and (3) relieving major party candidates of the rigors of fundraising.”[36]  The Court explained that public financing furthers the First Amendment because it is “a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process.”[37]  The Court stated that the system furthers a significant government interest—that of preventing corruption—by “eliminating the improper influence of large private contributions.”[38]  Thus, with the help of the Supreme Court, public financing was born.

II.  The Rise of Public Financing Statutes and Challenges to Trigger-Funding Provisions

A.     Structure of Traditional Public Financing Statutes

After Buckley established the foundation for the enactment of public financing statutes, several states began enacting similar “Clean Elections” statutes to provide public financing for all levels of government.[39]  When Arizona Free Enterprise went before the Supreme Court, twenty-five states had some form of public financing.[40]

Arizona’s Citizens Clean Elections Act,[41] passed in 1998, provides a good example of the structure of a traditional public financing statute.  Under Arizona’s statute, candidates for several state offices may opt to receive public financing if they meet and agree to certain requirements.[42]  For example, candidates must collect a certain number of five-dollar donations[43] and agree to certain campaign restrictions and obligations, such as limiting their expenditure of personal funds to $500,[44]participating in public debates,[45] adhering to various expenditure limits,[46] and returning any unused money to the state.[47]

Because the Buckley Court held that limits on expenditures were unconstitutional,[48] participation in public financing is voluntary.  Practically speaking, this means that publicly financed candidates have to compete against privately financed candidates who have not subjected themselves to expenditure limitations.

Recognizing the need to attract candidates to participate in public financing systems, statutes often include trigger-funding, or rescue-funding provisions.[49]  Under Arizona’s trigger-funding provision, if a publicly financed candidate’s privately financed opponent, or an independent group supporting the opponent, spends more than the initial allotment of state funds to the publicly financed candidate, a matching-funds provision is triggered.[50]  Each additional dollar the privately financed candidate spends results in one dollar of additional funding for the publicly financed candidate.[51]  The additional funds are capped at three times the initial grant to the publicly financed candidate.[52]  In defending its trigger-funding provision, Arizona explained:

By linking the amount of public funding in individual races to the amount of money being spent in these races, the State is able to allocate its funding among races of varying levels of competitiveness without having to make qualitative evaluations of which candidates are more “deserving” of funding beyond the base amounts provided to all publicly-funded [sic] candidates.[53]

Proponents of trigger-funding provisions argue that without the provisions, “candidates would be hesitant to participate in public financing because a non-participating candidate could drown out the participating candidate’s message by spending potentially unlimited funds.”[54]  Proponents also argue that “money coarsens our debate and should be taken out of politics.  To spend ‘too much’ on politics is intrinsically bad.”[55]  Furthermore, they say that “[a]dditional funding does not restrict the speech of nonparticipating candidates”; rather, it provides for the speech of others.[56]

On the other hand, opponents argue that trigger funds violate the First Amendment because they chill the nonparticipating candidate’s speech since “spending in excess of the specified trigger results in public funds being dispersed to a participating candidate.”[57]  As one scholar puts it, “In the zero-sum game of an election, a subsidy for one necessarily penalizes the other.”[58]  Trigger funds “burden the speech of nonparticipants . . . by ensuring that, at least to a point, every dollar they spend in conveying their message will be met by taxpayer dollars funding a private message diametrically opposed to their own.”[59]  These arguments gave rise to constitutional challenges to trigger funding in public financing statutes.

B.     Challenges to Trigger-Funding Provisions Pre-Davis.

Prior to 2008, public financing statutes with trigger-funding provisions did well in lower courts.  The First, Fourth, and Sixth Circuits all found trigger-funding provisions constitutional.[60]  In North Carolina Right to Life Committee Fund for Independent Political Expenditures v. Leake, for example, the Fourth Circuit upheld the constitutionality of the trigger-funding provisions in North Carolina’s Judicial Campaign Reform Act.[61]  In upholding the statute, the court explained that the provision “‘furthers, not abridges, pertinent First Amendment values’ by ensuring that the participating candidate will have an opportunity to engage in responsive speech.”[62]  Furthermore, the court explained, “To the extent that the plaintiffs (or those similarly situated) are in fact deterred by [the statute] from spending in excess of the trigger amounts, the deterrence results from a strategic, political choice, not from a threat of government censure or prosecution.”[63]

Only the Eighth Circuit, in Day v. Holahan, found trigger-funding provisions unconstitutional.[64]  In Day, the Eighth Circuit declared a Minnesota statute unconstitutional and explained that the state’s interest in encouraging participation in public financing was not a sufficiently compelling interest to justify the burden on free speech.[65]

C.     Davis v. Federal Election Commission

The Supreme Court’s approach to campaign finance reform shifted dramatically in 2008 when it considered the constitutionality of the “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002[66] in Davis v. FEC.[67]  Although Davis did not directly involve a challenge to public financing statutes, it dramatically “altered the framework under which federal courts analyze trigger fund provisions.”[68]

The Millionaire’s Amendment at issue in Davis provided that if a candidate for the House of Representatives spent more than $350,000 of her own personal money on her campaign, that candidate’s opponent would be permitted to collect contributions from individuals up to $6900 per person—three times the normal contribution limit of $2300.[69]  However, the candidate who spent more than $350,000 of personal funds remained subject to the original contribution limit of $2300.[70]

The Davis Court declared the Millionaire’s Amendment unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”[71]  The Court further explained that it had “never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other . . . .”[72]

In responding to the argument that the Millionaire’s Amendment was similar to public financing, the Court explained that in a public financing system, a nonparticipating candidate “retain[ed] the unfettered right to make unlimited personal expenditures,” a right which the Millionaire’s Amendment burdened because a candidate’s personal expenditures triggered a “scheme of discriminatory contribution limits.”[73]  The Court concluded that there was no government interest justifying the burden of the Millionaire’s Amendment and declared the statute unconstitutional.[74]

D.    Challenges to Trigger-Funding Provisions Post-Davis

The Court’s rationale in Davis prompted a host of challenges to trigger-funding provisions of public financing statutes all across the country.  Within months afterDavis, both the Eleventh Circuit[75] and the Second Circuit[76] found trigger-funding provisions in public financing statutes unconstitutional.  Both of these courts found trigger-funding provisions more troublesome than the Millionaire’s Amendment in Davis because instead of just relaxing contribution limits, the trigger funds guaranteed that the spending-candidate’s opponent would have additional money.[77]

The Ninth Circuit, on the other hand, found trigger-funding provisions constitutional in McComish v. Bennett.[78]  Because of the split between circuits over this issue, the Supreme Court, on November 29, 2010, granted certiorari to McComish v. Bennett.[79]

III: The Case—Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett

A.     District Court Decision

The district court held that the trigger-funding provision in Arizona’s statute was unconstitutional because it “constitute[d] a substantial burden” on free speech since it awarded funds to the publicly financed candidate on the basis of the privately financed candidate’s free speech.[80]  The court explained that there was “no compelling interest served” by the provision that might justify the burden imposed.[81]

The court analogized the trigger-funding provision to the “Millionaire’s Amendment” that was addressed in Davis v. FEC.[82]  The court explained that “[i]f the merepotential for your opponent to raise additional funds is a substantial burden, then the granting of additional funds to your opponent must also be a burden.”[83]  The court stated that

[a]rguably . . . [matching funds] is more constitutionally objectionable than increasing an opponent’s individual contribution limits.  In the latter scenario, the opponent must still go out and raise the additional contributions. . . . [Matching funds], by contrast, ensure . . . that there will be additional money to counteract the excess expenditures by the non-participating candidate . . . .[84]

The court then issued an injunction against the enforcement of the matching funds provision.[85]

B.     The Ninth Circuit Decision

The Ninth Circuit stayed the district court’s injunction and, after hearing the case, reversed the decision.[86]  The court concluded that the matching funds provision was constitutional because it only imposes a “minimal burden on First Amendment rights” since it “does not actually prevent anyone from speaking in the first place or cap campaign expenditures.”[87]  The court also found a substantial relation between the trigger-funding provision and the state’s “sufficiently important interest in preventing corruption and the appearance of corruption.”[88]  The court evaluated the provision using intermediate scrutiny because it concluded that “the burden created by the Act is most analogous to the burden of disclosure and disclaimer requirements in Buckley and Citizens United.”[89]  Following those precedents, the court applied intermediate scrutiny.

The Ninth Circuit specifically disagreed with the district court’s determination that the provisions bear no relation to reducing the appearance of quid pro quo corruption.[90]  The court explained:

The more candidates that run with public funding, the smaller the appearance among Arizona elected officials of being susceptible to quid pro quo corruption, because fewer of those elected officials will have accepted a private campaign contribution and thus be viewed as beholden to their campaign contributors or as susceptible to such influence.[91]

The court finally explained that without trigger funding, candidates would not be willing to participate in public financing, and, thus, the system would do nothing to reduce the existence or appearance of quid pro quo corruption.[92]  The court stated:

In order to promote participation in the program, and reduce the appearance of quid pro quo corruption, the State must be able to ensure that participating candidates will be able to mount competitive campaigns, no matter what the source of their opponent’s funding. . . . A public financing system with no participants does nothing to reduce the . . . appearance of quid pro quo corruption.[93]

C.     The Supreme Court Decision

1.     The Majority Opinion

The Supreme Court granted certiorari on November 29, 2010,[94] and struck down the Arizona law in a five-four decision written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas, and Alito.[95]  The Court relied heavily on its reasoning in Davis and declared that “[i]f the law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably does as well.”[96]

In analogizing the trigger-funding provision of the Arizona law to the Millionaire’s Amendment, the Court noted that the Arizona law imposed a far heavier burden because it led to the direct and automatic release of public funds, rather than an ability to raise more funds.[97]  Furthermore, under the Arizona law, spending by independent groups also triggered the matching funds, meaning that the burden that may be imposed on the privately financed candidate is somewhat out of the candidate’s hands.[98]  The Court explained, “That disparity in control—giving money directly to a publicly financed candidate, in response to independent expenditures that cannot be coordinated with the privately funded candidate—is a substantial advantage for the publicly funded candidate.”[99]

Arizona, the Clean Elections Institute, and the United States argued that the provision does not have a chilling effect on speech, but rather, “results in more speech by ‘increas[ing] debate about issues of public concern’ . . . and ‘promot[ing] the free and open debate that the First Amendment was intended to foster.’”[100]  The Court disagreed and stated that “even if the matching funds provision did result in more speech by publicly financed candidates and more speech in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates and independent expenditure groups.”[101]

Next, the Court examined whether the provision was justified by a compelling state interest.[102]  Arizona argued that the compelling state interest supporting the provision was in “combat[ing] corruption by eliminating the possibility of any quid pro quo between private interests and publicly funded candidates . . . .”[103]  The Supreme Court disagreed, concluding that the real government interest behind the provision was in “leveling the playing field.”[104]  The Court stated that the provision does not serve an anticorruption interest because “[t]he matching funds provision counts a candidate’s expenditures of his own money on his own campaign as contributions” and because “independent expenditures . . . do not give rise to corruption or the appearance of corruption.”[105]  The Court then reaffirmed that “it is not legitimate for the government to attempt to equalize electoral opportunities in this manner.”[106]

The Court went on to explicitly state, “We do not today call into question the wisdom of public financing as a means of funding political candidacy.  That is not our business.”[107]  However, the Court also explained that “the goal of creating a viable public financing scheme can only be pursued in a manner consistent with the First Amendment.”[108]  The Court found Arizona’s statute inconsistent with the First Amendment, concluding that “[l]aws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.”[109]

2.     The Dissent

Justice Kagan wrote a fiery dissent disagreeing with all aspects of the majority opinion.  Kagan stated that the statute neither imposes a restriction nor a substantial burden on expression; rather, “[t]he law has quite the opposite effect: It subsidizes and so produces more political speech.”[110]

The dissent set forth three reasons why the Arizona provision does not constitute a “substantial” burden of free speech.  First, it stated that the matching funds provision provides no greater a burden on privately financed candidates than a lump sum, which the Court upheld in Buckley.[111]  Second, it stated that in the past the Court had had no difficulty upholding disclosure and disclaimer requirements, which the Court reasoned “may burden the ability to speak”[112] and “will deter some individuals” from engaging in expressive activity.[113]  Third, “any burden that the Arizona law imposes does not exceed the burden associated with contribution limits,” which the Court stated “impose direct quantity restrictions on political communication and association.”[114]

The dissent also disagreed with the majority’s reliance on Davis.[115]  In Davis, a candidate’s spending triggered a discriminatory speech restriction, namely, imposing a different contribution limits scheme.[116]  In contrast, the Arizona provision only triggered a nondiscriminatory speech subsidy.[117]  “The constitutional infirmity in Davis was not the trigger mechanism, but rather . . . ‘the asymmetrical contribution limits.’”[118]

Finally, the dissent disagreed with the majority’s finding that Arizona did not have a compelling government interest justifying the statute.  It explained, “Our campaign finance precedents leave no doubt: Preventing corruption or the appearance of corruption is a compelling government interest.”[119]  To the contrary, the compelling interest “appears on the very face of Arizona’s public financing statute . . . [t]he public financing program . . . was ‘inten[ded] to create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money.’”[120]

IV.  The Future of Public Financing after Arizona Free Enterprise

A.     So Long, Trigger Funds . . . Hello, Small Donors

The Supreme Court’s decision in Arizona Free Enterprise signals the death of traditional public financing statutes that rely on trigger funds to attract candidates.  However, the death of traditional public financing was evident well before the Supreme Court decided Arizona Free Enterprise.  Most telling was President Barack Obama’s decision to opt out of public financing during the 2008 election—the first presidential candidate to do so since the system was created.[121]  Even before that, in 2004, John McCain remarked, “[T]here are considerable incentives for some candidates to opt out of public financing.”[122]  The rising costs of campaigns make it impractical and unwise for serious candidates to participate, and the effectiveness of public financing as a means to combat corruption depends on candidates actually participating in the system.

Without trigger funds, “a candidate . . . would be limited to receiving only the program’s predetermined amount of funding, which would severely disadvantage the candidate if he or she faced a privately funded opponent who had significantly fewer financial restrictions.”[123]  As one scholar put it, “The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won’t be vastly outspent in their election.”[124]  Without this added assurance, there is little to no incentive to participate.

Since Arizona Free Enterprise, the constitutionality of public financing statutes has been, or will be, challenged in several states,[125] and “[e]very jurisdiction that provides additional funds to publicly financed candidates in the face of either high spending, in the face of a privately-financed [sic] opponent or an outside expenditure group will have to reevaluate those provisions and probably take them off the books.”[126]

However, as the Supreme Court explicitly noted in Arizona Free Enterprise, it did not “call into question the wisdom of public financing as a means of funding political candidacy”[127]—it only declared unconstitutional a grant of additional money to publicly financed candidates triggered by “a high-spending opponent or unexpectedly expensive outside attack ads.”[128]  The Court stated that “[w]e have said that governments ‘may engage in public financing of election campaigns’ and that doing so can further ‘significant governmental interest[s],’ such as the state interest in preventing corruption.”[129]  The Court’s major issue with Arizona’s trigger funding “was not that it gave public financing for elections to candidates, but that it pegged the amount of financing to the political spending of opponents or independent groups opposing the candidate.”[130]  As Michael Waldman, Director of the Brennan Center for Justice, declared, public financing “can exist and thrive without the kinds of triggers in the Arizona law.”[131]

Not only can public financing exist and thrive without the kinds of triggers in the Arizona law, it does exist in the form of small-donor matching programs, such as the one in New York City.  A small-donor matching program is a voluntary public financing system that provides matching funds for small contributions from local donors rather than matching funds to an opponent’s high spending.[132]  Since the New York City Council passed the New York City Campaign Finance Act in February 1988 establishing a small-donor matching program,[133] it has been met with surprising success.

This Part suggests that a small-donor matching program, such as the one in New York City, that provides matching funds for small donations from local donors, replaces spending limits with contribution limits, and provides incentives for small donors to engage in the political system provides a viable—and likely constitutional—alternative to traditional public financing.  Small-donor matching programs may even be a more effective form of public financing “because the Internet makes low-dollar fund-raising [sic] so simple.”[134]

B.     Following the Leader: The New York City Campaign Finance Act

Like most public financing statutes, the New York City Campaign Finance Act was designed to prevent corruption; but unlike traditional statutes, the New York City Act also seeks “to expand the role of citizens in elections from voter to that of financier and even candidate.”[135]

Under the New York City small-donor matching program, participating candidates receive a six-to-one match in public financing for the first $175 they raise from each New York City voter, turning a $175 donation into a $1,225 donation.[136]  To encourage candidates to engage local voters, only donations from New York City residents are matched.[137]  These two provisions encourage participants to solicit support from a large donor base of New York City residents instead of focusing on obtaining larger contributions from a smaller group of wealthy donors, political parties, political action committees, and the like.[138]  Thus, unlike Arizona’s statute, which tied additional public funds to the high spending of privately financed opponents, New York City’s statute ties public funds to the success of the candidate’s own small-donor fundraising.  And this, in turn, “avoids the constitutional problems raised in the [Arizona Free Enterprise] case, by ensuring that a candidate’s public financing rises or falls based on her own success at campaigning.”[139]

The New York City small-donor matching program does contain a “bonus” matching component which may be deemed unconstitutional in light of Arizona Free Enterprise.  Under the bonus match provision of the statute, “[a] non-participant triggers additional public funding for participating opponents by spending or raising one-half of the established spending cap for that election.”[140]  However, statistics have shown that the bonus matching funds are not crucial to the success of the program for two reasons.  First, from 1997 to 2005, only four percent of all public funding has come from the bonus payments.[141]  Second, the bonus matching program was triggered in less than ten percent of New York City elections from 1989 to 2006.[142]  Thus, even if Arizona Free Enterprise results in this provision being unconstitutional, it does not signal the end of the small-donor matching program as a whole.

Since its initiation, the New York City program has been very successful.  The program has led to “more competition, more small donors, more impact from small contributions, more grass roots [sic] campaigning, and more citizen participation in campaigns . . . [,][a]nd it has reduced the influence of big money in general and corporate money in particular.”[143]  For example, in 2009, ninety-three percent of primary candidates financed their campaigns through the public finance program and sixty-six percent of general election candidates participated in the program.[144]  Not only does the system attract participation, it also produces results: in 2009, “the Public Advocate, the Comptroller, all five Borough Presidents, and all but two of the [fifty-one] City Council candidates who were elected” participated in the small-donor matching program.[145]  Finally, the “system promotes voter choice by enabling a diverse pool of candidates with substantial grassroots support but little access to large donors to run competitive campaigns.”[146]

The New York City Program has not been immune from criticism, however.  One common question relating to all public financing programs is: How can candidates who voluntarily subject themselves to fundraising and spending limits successfully compete with privately financed candidates?  In response, proponents of New York City’s program argue that the system still provides participating candidates with more money to compete than they would otherwise have.[147]  As Mark Green, Michael Bloomberg’s opponent in the 2001 election for New York City Mayor, remarked, “It is irrational to argue against a system that enables a diverse group of people to run competitive campaigns because a wealthy candidate can occasionally outspend a participating candidate.  The program benefits are not undermined by the rare occurrence of a Bloomberg candidate.”[148]

The question now is whether New York City’s program will stand up under judicial scrutiny.  The short answer: most likely.  As discussed above, the Court’s decision in Arizona Free Enterprise is limited to trigger-funding provisions; it does not affect public financing as a whole.  New York City’s small-donor matching program “doesn’t directly violate the rule in . . . [Arizona Free Enterprise], because the amount received is not triggered by opponent spending.”[149]  Instead, the success of the program is based on the ability of the candidate to raise her own funds from small donors.  The only components of New York City’s program likely open to attack are the provisions that increase the matching ratio and expenditure limits for candidates in races against opponents who spend above-threshold—but even without this provision, the small-donor matching program would likely still be successful.[150]

C.     Small-Donor Matching Gains Traction

In 2011, in response to the success of New York City’s program, the Wisconsin Democracy Campaign, a campaign reform organization, introduced a small-donor matching proposal for Wisconsin using New York City’s approach as a model.[151]  Under the Wisconsin proposal, qualifying contributions to candidates of less than fifty dollars would be matched at a ratio of four-to-one, and contributions between fifty and one hundred dollars would be matched three-to-one.[152]  Furthermore, the Wisconsin approach “remov[es] spending limits as a condition for receiving public financing benefits, thereby allowing [candidates] to compete more freely while still weaning them from a heavy reliance on legal bribes from big-money special interests.”[153]

The success of the small-donor matching program in New York City has also sparked the proposal of a similar program for congressional elections and a reform of the current presidential public financing program.  The bipartisan Fair Elections Now Act, proposed in 2009, would establish, for the first time, public financing for congressional candidates.[154]  The supporters of the Act declare that it will:

[H]elp[] to reduce the ability to make large campaign contributions as a determinant of a citizen’s influence within the political process by facilitating the expression of support by voters at every level of wealth, encourag[e] political participation, [and] incentiviz[e] participation on the part of Members through the matching of small dollar contributions.[155]

Under the proposed bill, the program would offer participating congressional candidates an initial sum of public money and would then match small contributions (of less than one hundred dollars) at a rate of four-to-one (or 400%) throughout the election up to a certain level.[156]  Additionally, qualifying contributions would have to come from donors within the candidate’s own state, thus reducing the influence of large donors outside the candidate’s district.[157]  Similarly, under the Presidential Funding Act, introduced in 2010, candidates would receive an initial sum of money and would receive thereafter a four-to-one match for contributors who gave $200 or less.[158]  Although the Fair Elections Now bills have not emerged from Committee, the bills have seventy-eight co-sponsors in the House of Representatives and thirteen in the Senate.[159]

Studies have also examined the effect of implementing small-donor matching programs across the country.  In 2008, the Campaign Finance Institute predicted the impact of small-donor matching public financing programs in six midwestern states.[160]  The study showed that with a small donor matching program, the percentage of small donors ($0–$100) contributing to campaigns would likely greatly increase, while the percentage of high-spending donors ($1,000+) would decrease.[161]  Although most of the money would still come from large donors, the “multiple matching fund increases the importance of [small donors] who already participate as well as creat[es] an incentive for candidates to recruit more [small donors] to join in.”[162]


In the wake of the Supreme Court’s decision in Arizona Free Enterprise, traditional public financing as we know it is dead.  However, as the Court made clear, and as New York City’s small-donor matching program has demonstrated, public financing as a concept is not.

The success of the New York City small-donor matching program serves as a model for public campaign finance reform.  The New York City program has resulted in “more competition, more small donors, [greater] impact from small contributions, more grass roots [sic] campaigning, and more citizen participation in campaigns.”[163]  Ultimately, New York City’s program “has reduced the influence of big money in general and corporate money in particular.”[164]

As states investigate implementing small-donor matching programs, they should focus on a program that utilizes two successful components of New York City’s program.  First, any program should make a small portion of funds available to qualifying candidates early on in the election cycle.  This portion should “provide enough public money to give an underdog candidate a reasonable foundation for competing against a frontrunner, but should not make the race less competitive by giving a frontrunner a publicly funded financial advantage over the rest of the field.”[165]  Second, the bulk of the public funds distributed to the candidate should be in direct response to the candidate’s own small-donor fundraising efforts.  Tying public funds to a candidate’s own fundraising efforts creates incentives for candidates to directly engage with the local population, “enhances the value of a small donation, and offers candidates an opportunity to raise substantial sums from small contributors.”[166]

Will small-donor matching programs survive the scrutiny of the Supreme Court?  Most likely, but with the recent pattern of the Supreme Court striking down campaign finance regulations, no one knows for sure.[167]  As Rich Hasen remarked, small-donor programs “may be doomed if the [C]ourt views them as ‘leveling the playing field,’ an equality rationale for campaign finance laws that the [C]ourt majority has now rejected in three straight cases.”[168]

Preventing corruption, and the appearance of corruption, in political campaigns is still a worthy goal for states to pursue, and Arizona Free Enterprise did not eliminate public financing as a way to accomplish it.  Rather, Arizona Free Enterprise merely prompts states to re-examine current public financing programs and revise them to meet constitutional scrutiny and perhaps improve their effectiveness.  In the face of the imminent death of public financing, small-donor matching programs may serve as a viable alternative.  A small-donor matching program may not work everywhere, but it is one option for public financing that is likely to survive Arizona Free Enterprise, and is an option that puts states one step closer to preventing corruption in political campaigns.

        *   J.D. Candidate 2012; Vanderbilt University, B.A. 2007.  Dedicated to my father who was in the arena.

        [1].   Francis X. Clines, Senators Bemoan Unshakeable Habit, N.Y. Times, Mar. 20, 1997, at B12 (quoting Sen. Robert C. Byrd on the issue of campaign finance).

        [2].   T.W. Farnam & Nathaniel Vaughn Kelso, Campaign Cash: What Interest Groups Spent on 2010 Midterm Elections, Wash. Post, (last visited Apr. 10, 2012).

        [3].   130 S. Ct. 876 (2010).

        [4].   554 U.S. 724 (2008).

        [5].   See Danielle Kurtzleben, 2010 Set Campaign Spending Records, U.S. News, Jan. 7, 2011,

        [6].   Jim Meyers, 2012 Election Price Tag: $8 Billion, Newsmax, Apr. 14, 2011,

        [7].   Buckley v. Valeo, 424 U.S. 1, 26 (1976) (per curiam).

        [8].   Richard Esenberg, Playing Out the String: Will Public Financing of Elections Survive McComish v. Bennett?, 10 Election L.J. 165, 166 (2011).

        [9].   Buckley, 424 U.S. at 26–27.

      [10].   Id. at 96.

      [11].   Jason B. Frasco, Full Public Funding: An Effective and Legally Viable Model for Campaign Finance Reform in the States, 92 Cornell L. Rev. 733, 738 (2007) (citing Ariz. Rev. Stat. Ann. § 16-940(B) (2006)).

      [12].   See Maine Clean Election Act, 1996 Me. Legis. Serv. Initated Bill Ch. 5 (West) (codified in scattered sections of Me. Rev. Stat. Ann. tit. 21-A, §§ 1121–1128 (Supp. 2006)).

      [13].   Citizens Clean Elections Act, 1998 Ariz. Legis. Serv. Prop. 200 (West) (codified at Ariz. Rev. Stat. Ann. §§ 16-901.01, -940 to -961 (2006) (amended 2011) (§ 944 repealed 2007)).

      [14].   Frasco, supra note 11, at 734–35.

      [15].   Id.

      [16].   Judicial Campaign Reform Act, 2002 N.C. Sess. Laws 158 (codified as amended in scattered sections of N.C. Gen. Stat. § 163 (2005)).

      [17].   See Eliza Newlin Carney, Public Financing: One Step Up Or Two Steps Back?,,—20100614 (last modified Dec. 16, 2010, 9:54 AM) (listing Connecticut, Maine, New Mexico, North Carolina, and Wisconsin among states with similar fund-matching systems).

      [18].   131 S. Ct. 2806, 2816 (2011).

      [19].   Id.

      [20].   Id. at 2813.

      [21].   See Tom Breen, Groups Seek to Overturn NC Campaign Spending Law, Real Clear Politics (Sept. 13, 2011),

      [22].   See Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (1972); Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (1974).

      [23].   Buckley v. Valeo, 424 U.S. 1, 6–7 (1976).

      [24].   Id. at 6–8.

      [25].   Id. at 58–59.

      [26].   Id. at 58.

      [27].   Id. at 108.

      [28].   Id. at 19.

      [29].   Id. at 39 (citing Williams v. Rhodes, 393 U.S. 23, 32 (1968)); id. at 44–45.

      [30].   Id. at 54.

      [31].   Id. at 20–21.

      [32].   Id. at 21.

      [33].   Id. at 26–27.

      [34].   Id. at 107–08.

      [35].   Id. at 90.

      [36].   Joel M. Gora, Don’t Feed the Alligators: Government Funding of Political Speech and the Unyielding Vigilance of the First Amendment, Cato Sup. Ct. Rev., 2010–2011, at 124, available at

      [37].   Buckley, 424 U.S. at 92–93.

      [38].   Id. at 96.

      [39].   Philip G. Rogers et al., Voter-Owned Elections in North Carolina: Public Financing of Campaigns, Popular Gov’t, Winter 2009, at 32, available at

      [40].   Id.

      [41].   Ariz. Rev. Stat. Ann. §§ 16-940–19-961 (2006 & Supp. 2011).

      [42].   See id. § 16-950(D) (making public financing available to candidates for governor, secretary of state, attorney general, treasurer, superintendent of public instruction or corporation commission, mine inspector, and state legislator).

      [43].   Id. § 16-941(A)(1).

      [44].   Id. § 16-941(A)(2).

      [45].   Id. § 16-956(A)(2).

      [46].   Id. § 16-941(A).

      [47].   Id. § 16-953.

      [48].   Buckley v. Valeo, 424 U.S. 1, 58–59 (1976).

      [49].   See Eric H. Wexler, A Trigger Too Far?: The Future of Trigger Funding Provisions in Public Campaign Financing After Davis v. FEC, 13 U. Pa. J. Const. L. 1141, 1151 (2011).

      [50].   Ariz. Rev. Stat. Ann. §§ 16-952(A)–(C).

      [51].   Id. § 16-952(A).  This additional funding is subject to a six percent reduction to account for fundraising expenses.  § 16-952(A) (amended 2011).

      [52].   Id. § 16-952(E).

      [53].   George LoBiondo, Pulling the Trigger on Public Campaign Finance: The Contextual Approach to Analyzing Trigger Funds, 79 Fordham L. Rev. 1743, 1749 (2011) (citing McComish v. Bennett, 611 F.3d 510, 527 (9th Cir. 2010)).

      [54].   Wexler, supra note 49, at 1151 (citing Brief of State Respondents at 9, Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) (Nos. 10-238 & 10-239)).

          [55].     Esenberg, supra note 8, at 166.

      [56].   Id. at 169.

      [57].   N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 437 (4th Cir. 2008).

      [58].   Esenburg, supra note 8, at 169.

      [59].   Id.

      [60].   See Leake, 524 F.3d at 432; Daggett v. Comm’n on Governmental Ethics & Election Practices, 205 F.3d 445, 472 (1st Cir. 2000); Gable v. Patton, 142 F.3d 940, 949 (6th Cir. 1998).

      [61].   N.C. Gen. Stat. § 163-278.61–163-335 (2011); Leake, 524 F.3d at 432.

      [62].   Leake, 524 F.3d. at 437 (quoting Buckley v. Valeo, 424 U.S. 1, 93 (1976)).

      [63].   Id. at 438.

      [64].   Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir. 1994).

      [65].   Id. at 1361.

      [66].   Bipartisan Campaign Reform Act of 2002 § 319(a), 2 U.S.C. § 441a-1 (2006).

      [67].   554 U.S. 724, 728 (2008).

      [68].   LoBiondo, supra note 53, at 1752.

      [69].   Davis, 554 U.S. at 729.

      [70].   Id. (citing 2 U.S.C. §§ 441a-1(a)(1)(A)–(C) (2006)).

      [71].   Id. at 739.

      [72].   Id. at 738.

      [73].   See Wexler, supra note 49, at 1159–60 (citing Davis, 554 U.S. at 739–40).

      [74].   Davis, 554 U.S. at 740.

      [75].   Scott v. Roberts, 612 F.3d 1279, 1281 (11th Cir. 2010).

      [76].   Green Party of Conn. v. Garfield, 616 F.3d 213, 218 (2d Cir. 2010).

      [77].   Id. at 244–45; Roberts, 612 F.3d at 1291.

      [78].   611 F.3d 510, 513 (2010), rev’d sub nom., Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).

      [79].   131 S. Ct. 644, 644 (2010), rev’d sub nom., Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).

      [80].   McComish v. Brewer, CV-08-1550-PHX-ROS, 2010 WL 2292213, at *8–9 (D. Ariz. Jan. 20, 2010), rev’d sub nom., McComish v. Bennett, 611 F.3d 510, 513–14 (9th Cir. 2010), rev’d sub nom., Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).

      [81].   Id. at *9.

      [82].   Id. at *7 (citing Davis v. FEC, 554 U.S. 724, 736–44 (2008)).

      [83].   Id. at *8 n.14.

      [84].   Id. at *8 (quoting Green Party of Conn. v. Garfield, 648 F. Supp. 2d 298, 373 (D. Conn. 2009), aff’d in part, rev’d in part, 616 F.3d 213 (2d Cir. 2010)).

      [85].   Id. at *13.

      [86].   McComish v. Bennett, 611 F.3d 510, 513–14 (9th Cir. 2010), rev’d sub nom., Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).

      [87].   Id. at 513, 525.

      [88].   Id. at 525.

      [89].   Id.

      [90].   Id. at 526.

      [91].   Id.

      [92].   Id. at 526–27.

      [93].   Id.

      [94].   McComish v. Bennett, 131 S. Ct. 644, 644 (2010).

      [95].   Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2812 (2011), rev’g by an equally divided court, McComish v. Bennett, 611 F.3d 510 (9th Cir. 2010).

      [96].   Id. at 2818.

      [97].   Id. at 2818–19.

      [98].   Id. at 2819.

      [99].   Id. at 2810.

    [100].   Id. at 2820 (quoting Brief of State Respondents at 41, Ariz. Free Enter., 131 S. Ct. 2806 (2011) (Nos. 10-238 & 10-239)).

    [101].   Id. at 2821.

    [102].   Id. at 2824.

    [103].   Id. at 2825.

    [104].   Id.

    [105].   Id. at 2826 (citing Citizens United v. FEC, 130 S. Ct. 876, 909 (2010)).

    [106].   Id.

    [107].   Id. at 2828.

    [108].   Id.

    [109].   Id. at 2829.

    [110].   Id. at 2833 (Kagan, J., dissenting).

    [111].   Id. at 2837–38.

    [112].   Id. at 2838 (quoting Citizens United v. FEC, 130 S. Ct. 876, 914 (2010)).

    [113].   Id. (quoting Buckley v. Valeo, 424 U.S. 1, 68 (1976)).

    [114].   Id. (quoting Buckley, 424 U.S. at 18).

    [115].   Id. at 2839.

    [116].   Id.

    [117].   Id.

    [118].   Id. at 2840 (quoting Ariz. Free Enter., 131 S. Ct. at 2820 (majority opinion)).

    [119].   Id. at 2841 (citing Davis v. FEC, 554 U.S. 724, 741 (2008); FEC v. Nat’l Conservative PAC, 470 U.S. 480, 496–97 (1985)).

    [120].   Ariz. Free Enter., 131 S. Ct. at 2841–42 (citing Ariz. Rev. Stat. Ann. § 16-940(A) (2006).

    [121].   An Important Campaign Announcement From Barack Obama,, (announcing his decision to opt out of public funding, explaining that the system is flawed, and asking supporters for their continued financial support) (last visited Apr. 12, 2012).

    [122].   John McCain, Reclaiming Our Democracy: The Way Forward, 3 Election L.J. 115, 120 (2004).

    [123].   Emily C. Schuman, Davis v. Federal Election Commission: Muddying the Clean Money Landscape, 42 Loy. L.A. L. Rev. 737, 740 (2009).

    [124].   Rick Hasen, The Big Campaign Finance Story of 2011: An Effective End to Public Financing, Summary Judgments: Loyola L. Sch., L.A. Fac. L. Blog (Nov. 28, 2010),

    [125].   See Gora, supra note 36, at 122 n.80 (“A number of ‘trigger’ schemes have been declared unconstitutional or are being rewritten in Arizona, Maine, Florida, Albuquerque, San Francisco and Los Angeles.”); see also Tom Breen, Groups Seek to Overturn NC Campaign Spending Law, Real Clear Politics, (Sept. 13, 2011),

    [126].   Alec Hamilton, Campaign Finance Ruling May Make NYC a Model for the Nation, WNYC (June 21, 2011) (quoting Jessica A. Levinson, Director of Political Reform at the Center for Governmental Studies),

    [127].   Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2828 (2011).

    [128].   Mark Ladov, Public Financing Lives in New York City, Brennan Center for Justice (July 14, 2011),

    [129].   Ariz. Free Enter., 131 S. Ct. at 2828 (citing Buckley v. Valeo, 424 U.S. 1, 57 n.65, 96 (1976)).

    [130].   Richard Hasen, The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, New Republic (June 27, 2011), [hereinafter Surprisingly Good News].

    [131].   Erik Opsal, Public Financing Lives, Brennan Center for Justice (June 28, 2011),

    [132].   Angela Migally & Susan Liss, Small Donor Matching Funds: The NYC Election Experience 4 (Brennan Center for Justice, 2010), available at

    [133].   N.Y.C., N.Y., Local Law No. 8, of 1988 (codified at N.Y.C., N.Y. Admin. Code § 3-702(3)).

    [134].   Zephyr Teachout, What the Court Did and Didn’t Do, Room for Debate, N.Y. Times Op. Pages (June 27, 2011),

    [135].   Migally & Liss, supra note 133, at 3.

    [136].   Id. at 5 (citing N.Y.C., N.Y., Admin. Code § 3-705(2)(a) (2009)).

    [137].   Id. (citing §§ 3-702(3), (1-a), (14)(a)(iii)).

    [138].   Ladov, supra note 129.

    [139].   Id.

    [140].   Larry Levy & Andrew Rafalaf, High Court’s Recent Decision on Public Matching Funds Renders New York City’s Campaign Finance System Ripe for Constitutional Attack, Albany Gov’t L. Rev. (July 11, 2011), (citing N.Y.C., N.Y., Admin. Code § 3-706(3)(a) (2011)).

    [141].   N.Y.C. Campaign Fin. Bd., The Impact of High Spending Non-Participants on the Campaign Finance Program 10 (2006), available at

    [142].   Id. at 3.

    [143].   Migally & Liss, supra note 133, at 21.

    [144].   Id. at 10.

    [145].   Id.

    [146].   Id. at 2.

    [147].   Id. at 22.

    [148].   Id. (citing Telephone Interview by Angela Migally with Mark Green (June 26, 2010)).

    [149].   Hasen, Surprisingly Good News, supra note 131.

    [150].   Migally & Liss, supra note 133, at 23.

    [151].   Ending Welfare as We Know It, Wisconsin Democracy Campaign 1–2 (June 29, 2011),

    [152].   Id. at 2–3.

    [153].   Id. at 2.

    [154].   Fair Elections Now Act, S. 752, 111th Cong. § 523(a) (2009); Fair Elections Now Act, H.R. 1826, 111th Cong. § 523(a) (2009) (introduced by Senators Dick Durbin (D-Ill.) and Arlen Specter (D-Pa.), and by Representatives John Larson (D-Conn.) and Walter Jones (R-N.C.)).

    [155].   S. 752, § 101(b)(3); H.R. 1826 § 101(b)(3).

    [156].   S. 752, § 521–523; H.R. 1826 § 521–523.

    [157].   S. 752, § 501(10)(b)(i).

    [158].   Presidential Funding Act of 2010, S. 3681, 111th Cong. § 101(a)(1)(A) (2010); Presidential Funding Act of 2010, H.R. 6061, 111th Cong. § 101(a)(1)(A) (2010) (introduced by Senator Russell Feingold (D-Wis.) and Representatives Chris Van Hollen (D-Md.), David Price (D-N.C.), Michael Castle (R-Del.), and Todd Russell (R-Pa.)).

    [159].   Fair Elections Co-Sponsor Update, Fair Elections Now (Oct. 26, 2011),

    [160].   Michael J. Malbin et al., The Campaign Fin. Inst., Public Financing of Elections after Citizens United and Arizona Free Enterprise 1–2 (2011), available at

    [161].   Id. at 2–3.

    [162].   Id. at 11.

    [163].   Migally & Liss, supra note 133, at 21.

    [164].   Id.

    [165].   Anthony J. Corrado et al., Reform in an Age of Networked Campaigns 45 (2010), available at

    [166].   Id. at 40.

    [167].   See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2828–29 (2011); Citizens United v. FEC, 130 S. Ct. 876, 913–14 (2010); Davis v. FEC, 554 U.S. 724, 744 (2008).

    [168].   Richard Hasen, New York City as a Model?, N.Y. Times (June 27, 2011),