The end of taxpayer financing of campaigns, at least NC’s system of “clean elections” is fast approaching (hopefully).  It is clear taxpayer financing is unconstitutional, although the State Board of Elections is pretending otherwise.

The latest blow to taxpayer financing is this 2nd Circuit Court of Appeals opinion from yesterday that struck down matching funds.  Matching funds are the critical component of “clean elections.”  If a candidate that doesn’t take taxpayer dollars (unsubsidized candidate) spends beyond a threshold amount of money, such as $5,000, then $5,000 in matching funds goes to the subsidized candidate.

As you might imagine this is quite a penalty for candidates that don’t take taxpayer dollars.  If they spend money to exercise their free speech rights, they are helping their opponents.  To make matters worse, if independent groups spend money to help the unsubsidized candidate, then that money is considered in calculating the amount of matching funds.  Learn more here and here.

This Second Circuit opinion comes after the United States Supreme Court took the unusual step of blocking matching funds from being issued in Arizona in the upcoming elections.  These are the same types of matching funds we issue in NC.

Then there’s Davis v. FEC (2008).  This is the United States Supreme Court case that I have long argued spells the end to matching funds.  While not dealing with matching funds directly, the Court held that it was unconstitutional to punish a self-financed candidate for spending beyond a threshold amount of money.  Sound familiar?

Like everyone else that objectively looks at the issue, Davis clearly would shoot down matching funds.  The Second Circuit applied Davis to strike down matching funds.  Here’s what the Court said:

The penalty imposed by the excess expenditure provision is, to be sure, slightly different from the penalty imposed by the Millionaire’s Amendment in Davis.  We agree with the District Court, however, insofar as the two penalties are different, the penalty at issue in this case is “more constitutionally objectionable.“ [Emphasis added]

As I argued, matching funds are worse than the penalty in Davis because matching funds are guaranteed money for the opponent whereas in Davis, the penalty was fundraising advantages–the opposing candidate still has to raise the money.

Will the SBOE still ignore what is obvious and engage in violating the First Amendment rights of North Carolinians?  If so, what credibility does the SBOE have in enforcing any laws when it will likely be issuing illegal matching funds in the upcoming election?

HT: Rick H.