This Week in Election Speech

The Supreme Court has declined to issue an injunction against the enforcement of a Maine campaign finance law. Unanimously rejecting the petition for relief against disclosure requirements, and 7-2 dismissing the same petition for an injunction to Maine's matching funds program. SCOTUSblog has the basics.

Justices Alito and Scalia were the dissenters, presumably because they would have supported an injunction on the 10-year old Maine Clean Election Act. The opt-in program places a maximum on private fundraising income (e.g. $200,000 for gubernatorial candidates) which must come from individuals not contributing more than $100 each. This is then the weird part of the law: the campaign must then collect checks from individuals of at least $5 per made out to the Maine Clean Elections Fund. Once a candidate turns in enough qualifying contributions (e.g. 3,250 for a gubernatorial race), the candidate receives matching funds to offset spending by either opponents or independent expenditure groups.

In June of this year, the Supreme Court had decided against such a scheme that provided funds issuing from the state after an opponent spends a certain threshold amount McComish v. Bennett 560 S. Ct ___ (2010). The Arizona law at issue had used a certain expenditure level to "trigger" the release of funds to the opponent candidate. The Supreme Court seems to have held (the opinion is still forthcoming), that the trigger level creates negative consequence of a candidate spending above a certain level. In Buckley v. Valeo 424 U.S. 1 (1976), the Court determined that while campaign donations may be limited, expenditures could not. The latent political speech which was suggested by an individual's donation is potentiated when a candidate puts the money to use: political speech is effectuated. Thus limits on campaign spending receive extraordinary scrutiny. The McComish and fellow office-seekers in Arizona successfully argued that having funds release at a certain threshold effectively chills a candidate's spending when approaching this threshold. The additional anxiety and calculation required at that point by the candidate qualify as a restriction on political speech. The District Court found for the plaintiffs, the Ninth Circuit reversed (pdf) that decision. In June, the Supreme Court reversed the circuit court, allowing the District Court's decision to stand, effectively enjoining the release of matching funds.

Plaintiffs in the Maine case sought a similar relief against a similar law, but because the Supreme Court would have to issue the original injunction (the District Court had found for the state and the circuit had agreed), seven justices were unwilling to do so just twelve days before the election.

Keep an eye out for a summary of a petition touching on the ability of candidates in judicial elections to personally solicit donations and engage in partisan activity.