Bad Legal Arguments Can't Stop Reform

 By Lawrence Norden

With Albany rocked by scandal over the last month, many believe that the time for comprehensive campaign finance reform, with better enforcement, lower limits, and public financing at its core, may finally have come. 

And why not?  The public -- Democrats, Republicans and Independents, all  --  strongly supports it.  With the endorsement of the Governor, Speaker Silver, Senate IDC Leader Klein, and Senate Democratic Conference Leader Andrea Stuart Cousins, we seem to have the votes to make it happen.

Unfortunately, not everyone is on board with bringing real reform to Albany.  Some opponents are resorting to rather silly arguments, in the apparent hope to slow things down. 

In today’s Daily Politics Ken Lovett reports that unnamed Senate Republicans “are raising potential constitutional roadblocks,” to this reform.  Specifically, they point to “Article VII, section 8 of the state Constitution that says that ‘the money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.’” (emphasis added).

The theory, as we understand it, is that this provision somehow prevents matching funds from being used by a candidate running for public office.  

To be generous, this is a novel interpretation that is almost certainly wrong.  To be ungenerous, it is a desperate attempt by certain legislators to try to protect the status quo by hiding behind a misreading of the State Constitution.  Either way, it should not be taken seriously by those with the power to bring comprehensive campaign finance reform to New York.

As it happens, the New York Court of Appeals recently looked at this section of the State Constitution and made clear that for those who sought to challenge a statute on these grounds, the “burden is a heavy one” because “enactments of the Legislature—a coequal branch of government—enjoy a strong presumption of constitutionality.”  Bordeleau v. State, 18 N.Y.3d 305, 313 (2011) (internal citation and quotation marks omitted).  The burden is “exceedingly strong” where the expenditures are “designed in the public interest.”  Id.  “Indeed, we have recognized the need for deference involving public funding programs essential to addressing the problems of modern life, unless such programs are patently illegal.” Id. (internal citations and quotation marks omitted).  Id.

A public funding program at the core of comprehensive campaign finance reform, passed in reaction to a series of state corruption scandals, would seem to fall squarely into an expenditure “designed in the public interest.”

It is also worth noting forty-six states have a prohibition on the use of public funds similar to that of New York, including other states with public financing programs such as Arizona, Connecticut, Hawaii, and Maine.  None have been successfully challenged on this ground.

Nor has a similar provision been used to challenge New York City’s public financing system, which has existed for 24 years.  In fact, the State Constitution has an arguably stronger restriction on the use of public funds.  Pursuant to Article VIII, section 1 of the state Constitution, “No . . . city . . . shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking . . . .”

Despite multiple challenges to the City’s program by some of the best anti-reform lawyers in the country, no one has brought this provision up.  Wonder why?  We’re guessing it’s because previous challengers to the City’s public financing system read the same case law we did, and decided they did not want to get laughed out of court.

David Early contributed to research related to this blog post