04.29.2014Political communications are like trees in a forest. Blessed with monetary sunshine political communications reach toward the sky, dominate the horizon, and potentially drench competitors in shade. Legal limits on financial support serve to wither these other messengers who, like trees in a forest, fall to silence. Consider then what this April showered upon New York’s thicket of contribution limits. First came the Public Trust Act. It marks the first time the State has adopted a public campaign financing law, in the form of a this-year-only pilot for one office, State Comptroller. As was the case for all New York City elections between 1988 and 2004, this new State law does not purport to change the currently high contribution limits for non-publicly-financed candidates and reduces contribution limits only for those candidates seeking public matching funds. Immediately on the heels of that legislation, the U.S. Supreme Court in McCutcheon v. FEC struck down aggregate contributions limits in federal elections, seemingly imperiling New York’s $150,000 annual aggregate limit. Now, Judge Paul Crotty has brought New York’s $150,000 annual aggregate contribution limit to an inevitable (albeit incomplete) denouement pursuant to McCutcheon by striking down its applicability to SuperPACs. When the rest of the $150,000 limit falls, contributors will also get to sprinkle maximum financial support upon as many candidates and party committees as they may wish. In theory, according to McCutcheon, these candidates will remain insulated from risk of quid pro quo corruption by “base limits.” Returning then to the distinction the new Public Trust Act makes between the base limits that apply to publicly-financed and the lower base limits that apply to non-publicly-financed candidates: what public policy does this serve? (While this blog has generally not been a forum for discussion of active cases in which we appear as attorneys, I’m about to make an exception.) At the very time Judge Crotty was (however reluctantly) sprinkling sunshine on SuperPACs, this lawyer was arguing an appeal on behalf of former NYC Republican mayoral candidate George McDonald (McDonald v. New York City Campaign Finance Board). Putting aside the specific legal issues of that case, which is a challenge to a 2004 local law leveling base limits for non-publicly-financed candidates, the McDonald appeal aims to help candidates compete for sunshine in a post-Citizens United wilderness. Under the Public Trust Act, candidates have three financing options: 1) self-financing; 2) raise matchable contributions for public financing and comply with reduced base limits; or 3) raise legally permissible campaign contributions under the pre-existing base limits. Each option for candidates runs up against limits: the limits of a candidate’s personal wealth, the limits of the time and effort that will be necessary for demonstrating eligibility for public funding, and the base limits themselves. In contrast, independent spending is constitutionally unlimited. Indeed, SuperPACs serve as a force multiplier for uniting the potentially unlimited fortunes of (non-candidate) citizens in pursuit of a common political message. Precisely because independent spending may be financed by unlimited sources, base limits inadvertently weaken the voice of candidates and amplify the impact of independent spending. Candidates therefore need all the options that campaign finance law may afford for financing their own campaign advocacy effectively. The Public Trust Act follows this approach precisely both by creating and preserving choice for candidates.