Cake vs Pie, an Inadequate Metaphor for Public Financing

Imagine you’re given a choice: a piece of pie for free or a piece of cake for $1. If you choose to pay for the cake, are you somehow harmed when I accept the free pie? If you know in advance that buying two pieces of cake means I get two pieces of pie, and yet you still choose to buy the cake, are you somehow harmed when I get more free pie? Bear in mind, the pie was available to you, too. You could’ve had free pie, just as much as I have. But you chose cake.

That tortured metaphor is a poor stand-in for the issue of public financing of political campaigns, but helps demonstrate the essential reason that such financing is not unfair: you had a choice and you made it, knowing the outcome in advance.

Yesterday, the Supreme Court heard arguments in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, the Arizona clean elections law that came out of a 1998 voter referendum following years of corruption scandals, including charges of bribery, money laundering, and campaign-law violations for lawmakers and those who sought to influence them with money.

The premise is simple: candidates can choose to forego public funding and raise as much money as they can or want for their campaigns, but they do so with the full knowledge that their opponents also have this choice, and may opt in to public financing, thereby lessening their own burden for constant fundraising. Most clean elections laws aim to keep privately-funded candidates from grossly outspending their publicly-funded counterparts by including provisions for additional funding for the latter group when the former reaches certain spending thresholds. The more cake you buy, the more free pie I get. You know this when you’re choosing between pie and cake, and when you buy more cake.

Public financing encourages greater participation by relieving some of the burden of needing a vast personal fortune and access to similarly wealthy donors, so that average Americans can run for office. It also enables candidates to run competitive campaigns without soliciting funds that may come with explicit or implicit strings attached. Clean elections legislation, and matching funds provisions, have been implemented by several states and upheld by the U.S. Court of Appeals for the 9th Circuit.

But can the same court that said corporations have the same rights at people really be expected to rule impartially on the cake and pie question? Questions posed by the justices during yesterday’s hearings seemed not to bode well for supporters of clean elections. Opponents argue that by giving me more pie when you buy more cake discourages you from buying more cake, thereby squashing your freedom.

[William] Maurer, representing the Freedom Club PAC, told the justices that the provision chills campaign speech by privately financed candidates and groups making independent expenditures. It forces them to refrain from raising or spending campaign-related funds so as not to trigger marching funds to their publicly financed opponents, he argued.

“The problem here is what triggers the money — my exercise of my speech rights,” he said. “The government provides a direct subsidy [to the publicly financed candidate] based on my act of speaking.”

[Bradley] Phillips, defending the system, countered that the provision actually increases campaign speech and spending. It allows the publicly funded candidate, he explained, to spend nearly as much as the privately financed candidate (up to three times the initial grant of public money).

“There is no significant evidence in the record” showing that candidates or groups are refraining from spending because of the matching trigger, he told the justices. “Statistical evidence shows that independent expenditures have gone up since the law was enacted.”

It is now up to the justices to determine whether matching funds provisions encourage more speech by all candidates or act to limit the speech of privately-funded candidates. Common Cause supports public financing and matching funds provisions. We endorse a clean elections system that reduces the influence of big donors  who come calling after candidates are in office, expecting a return on their electoral investments. We want to see politicians funded by and working for voters instead of big money donors, and we think there’s enough pie for everyone.

Related links:

Transcript of Oral Arguments before Supreme Court

Supreme Court skeptical about Arizona’s campaign finance law (Robert Barnes, The Washington Post, March 28, 2011)

Another campaign finance law appears ready to fall (Marcia Coyle, The National Law Journal, March 28, 2011)

Free Speech for Really Rich Guys: The Supreme Court finds a cause worth fighting for (Dahlia Lithwick,, March 28, 2011)

There are probably only about 10 guys in America who are cheerfully unconcerned about the influence of multimillionaires on elections. One of them is Charles Koch. David Koch is another, as is Karl Rove. Gov. Scott Walker of Wisconsin and the guy with the top hat on the board of the Monopoly game are two more. Luckily for them, the other five guys currently sit on the U.S. Supreme Court. And judging from this morning’s argument in McComish v. Bennett, there is no principle those five justices will fight harder to preserve than the right of the impossibly wealthy to purchase as much speech as they want and need to win a political campaign.

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