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Challenges to State Campaign Finance Laws Heat Up

With lawsuits over federal campaign finance legislation brewing, suits involving state campaign laws are boiling over, with two recent decisions being handed down, one involving a Massachusetts law and the other a Mississippi statute.

In Massachusetts, the fracas began when the state legislature refused to appropriate additional funds necessary to implement the voter-approved public financing scheme for state election campaigns, referred to as the Clean Elections Law (see Massachusetts Campaign Finance Reform Melee). Advocates of the referendum subsequently sued the state in an attempt to force the legislature to set aside the money. The court has issued a few intermediary rulings in an apparent attempt to force the legislative branch to either repeal the law or fund it. The legislature has done neither. Although a fund to make the payments has more than $23 million available, lawmakers have refused to release the money because of a feared budget deficit of $2 billion next year.

Taking the matter back into its own hands, on April 5, 2002, the Massachusetts Supreme Judicial Court ruled that state property must be auctioned to provide public funding for candidates who qualify under the law, which goes into effect for the first time this election cycle.

As stated in the decision penned by Judge Martha B. Sosman, "The Legislature has, for whatever reason, chosen to respond to this ‘constitutional crisis’ with brinkmanship rather than statesmanship."

In a bizarre twist, the court has given the power to the plaintiffs (which include several groups such as Massachusetts Voters for Clean Elections) to decide precisely what state properties should be sold. The attorney general has provided a list of suitable parcels, including abandoned state hospitals, an old clock tower, and state office buildings.

However, the plaintiffs have chosen a list of property calculated to embarrass their foes. According to the Boston Globe, they want to start selling the office furniture and equipment out from under the legislators who opposed funding the law, including the house speaker and majority leader. In addition, the next items on their list to be sold include the lawmakers’ state-owned vehicles and parking spaces. The attorney general must first approve their crafty plan and it is unclear whether it will pass legal muster.

The other court decision on campaign finance, not as colorful, but even more important, was issued by the Fifth Circuit Court of Appeals and involves a Mississippi statute governing financial disclosures during elections.

In Chamber of Commerce v. Moore, a unanimous three-judge panel of the Court of Appeals struck down a lower court’s ruling that the U.S. Chamber of Commerce was not exempt from state reporting requirements for campaign expenditures. Holding that the reporting requirements violated the group’s First Amendment free speech rights, the court ruled that, "The government may regulate only those communications containing explicit words advocating the election or defeat of a particular candidate." The decision closely mirrors the Supreme Court’s 1976 landmark decision, Buckley v. Valeo, and opinions from five other circuit courts.

The appellate court decision means that the Chamber does not have to report how much it spent running several issue ads during Mississippi’s judicial elections because the ads did not expressly advocate for or against specific candidates.

The Center and others challenging the federal campaign finance law are hopeful that this ruling is a sign of things to come. Part of the legal challenge to the federal law relates to Congress’ attempt to ban issue ads, much like those run by the Chamber, 60 days before a general election and 30 days before a primary.

To read the Fifth Circuit’s ruling, please click here.

[Posted April 11, 2002]

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