Nebraska's Campaign Finance Limitation Act hasn't been enforced since last year, after the U.S. Supreme Court threw out a similar Arizona law. But supporters are trying to revive the Nebraska version, in arguments the state Supreme Court will hear next Wednesday.
Nebraska's Campaign Finance Limitation Act, or CFLA, has been on the books for 20 years. Jack Gould of Common Cause Nebraska says it grew out of concern that election campaigns were becoming too expensive for ordinary people to compete in successfully. "There are those who can raise money a lot more easily than other people. That doesn't necessarily mean that that person's is more correct than the other person. It just means they're able to raise more money. So I think you don't want to disadvantage a candidate on the basis of the fact that he may not be supported by AT&T or ConAgra or one of the big corporations," Gould said.
To try to deal with that, the Legislature passed the CFLA. It sets voluntary limits on how much candidates can spend for various offices. Those limits have been adjusted over time to account for inflation. As of last year they stood at $92,000 for the Legislature and $103,000 for the Board of Regents, for the primary and general elections combined.
Candidates are asked up front if they plan to abide by the voluntary limits or not. If one candidates says yes, but the other says no, the candidate who agrees to the limit can get public funds to make up the difference. Omaha state Sen. Scott Lautenbaugh, a longtime critic of the CFLA, says the effort was flawed from the start. "I think it was almost a fool's errand that we went on, in that it was designed to take money out of politics, which I don't believe you can do," he said.
Last June, in a 5-4 decision, the U.S. Supreme Court ruled a similar Arizona law was unconstitutional. (To read the opinion, click here).Writing for the majority, Chief Justice John Roberts said, in essence, that the fact that one candidate's spending, or speech, triggered public funding for a second candidate violated the first candidate's freedom of speech.
In August, Nebraska Attorney General Jon Bruning issued an opinion saying a court would likely conclude Nebraska's law is unconstitutional as well, and the state stopped enforcing it. (To read the opinion, click here).
That's what next week's arguments in the Nebraska Supreme Court are about. Arizona's law was similar, but not identical, to Nebraska's. Secretary of State John Gale, required to defend the law, hired Lincoln attorneys Jeffry Patterson and Bob Bartle.
In their brief, they argue that unlike in Arizona, public financing in Nebraska is not directly triggered by spending, or "speech," by an opposing candidate. (To read the brief, click here). Instead, it depends on whether the opposing candidate decides beforehand whether to abide by the spending limits. And the funds are released when the non-abiding candidate reaches 40 percent of the spending limit, not when he or she reaches the limit. Also, while Arizona's law counted spending by outside groups supporting the candidate, Nebraska's does not.
Lautenbaugh is not impressed by these distinctions. "Maybe Arizona's extra-unconstitutional,'" he said. "That theirs is worse doesn't mean that ours isn't bad Narrower scope, but still the same constitutional defect."
In addition to deciding whether the differences between the Nebraska and Arizona laws are significant, the Nebraska Supreme Court is also being asked to rule on the process by which Nebraska stopped enforcing its statute. "I'm not going to say that the attorney general is right or wrong. But that the challenge should be from the grassroots up, not just a decision at the top that says It doesn't work. We're not going to have it anymore,'" Gould said. "We're not like Arizona. And if we're not like Arizona, then we have to show that the Arizona decision really applies to Nebraska."
In a friend of the court brief filed for Common Cause and the League of Women Voters, Lincoln lawyer Andy Barry argues that the attorney general failed to declare in his opinion that the CFLA is unconstitutional. (To read the brief,click here).Instead, Barry says, the opinion merely says that a court "would likely find" the public financing portions unconstitutional.
In their brief, Assistant Attorneys General Dale Comer and Lynn Melson argue that only a court can "declare" a law unconstitutional. (To read the brief,click here).They say requiring the attorney general to use particular words in his opinion is unnecessary and would cause needless delay.
It's not just public financing that's at stake in the case. A separate part of the CFLA also says no more than 75 percent of a candidate's funding can come from sources other than individuals, like corporations, unions, and political action committees.
Lautenbaugh says if the public funding portion is found unconstitutional, those limits ought to go away as well. "I have consistently and honestly just been a fan of full and vigorous disclosure. And swifter than we do, so that everyone can look, just go online and see, Hey, who's backing this guy? Where is the money coming from?' And honestly, I think that's the best we can or should do, is just disclose everything, and call it good," he said.
Gould says Common Cause supports full disclosure, but wants to keep public financing and campaign contribution limits as well. "Really, the whole thing rests on what the Supreme Court, the Nebraska Supreme Court, decides. They have the final word on where we go from here," he said. "I really don't know what will be the outcome. We feel that it's necessary to raise a lot of the questions that we're raising in our brief because the CFLA deserves to be defended."
Whether that defense is successful, or the Court puts the final nail in the CFLA's coffin, will be decided sometime after next Wednesday's oral arguments.