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Nebraska Law Review

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This Article asserts the current predicament of public campaign financing is this: options that are still on the table under the Court's First Amendment jurisprudence are, with only rare and idiosyncratic exceptions, fiscal and political non-starters. Conversely, options that would be, and indeed previously had been, fiscally and politically viable, are now, even after years of their routine practice in varied jurisdictions, no longer constitutional. It is, in short, simultaneously a legal and practical dilemma. Short of highly unlikely swings of the Supreme Court pendulum, and absent an even more unlikely constitutional amendment, cities, states, and federal government actors, who might otherwise consider allowing candidates for office to opt for voluntary public financing, now find themselves between a legal rock and a fiscal hard place: unless a jurisdiction adopts, via extraordinarily high initial lump sum funding that grossly overspends the people's money to the point of fiscal ruin, any candidate opting in is effectively volunteering only to play the role of a sitting duck. On the more promising side, this Article asserts that systems that operate based on offering funding as a multiple for small-donor donations offer one potential solution to the dilemma. However, the Article ultimately contends that such systems are particularly vulnerable in jurisdictions with small populations insofar as moneyed interest groups from outside the jurisdiction can easily overwhelm, for example, even the multiplied donations of the citizens of largely rural states or jurisdictions.. . .

Drawing from the recent jurisprudence and recent data and dynamics in the political realm, this Article analyzes both the legal and real politick aspects of the new landscape of public financing. While not all public financing systems follow the Arizona matching funds model, most advocates of public financing considered it to be the most politically viable form of public financing, precisely because it protects the public fisc by keeping initial funding allotments low enough so as not to needlessly spend taxpayer funds on low-dollar races, noncompetitive contests, or both, while simultaneously assuring candidates considering opting in to public financing (and thus foregoing significant private funds) that they would, in an expensive or highly competitive race, actually be able to counter speech with speech.This Article asserts the combination of three factors: (1) challenging federal and state economies; (2) Citizens United's opening of new financial spigots; and (3) the Free Enterprise decision arguably spells the doom of public financing as we have known it. The Arizona model might be justified in a judicial public-financing context by the additional compelling interests present in that circumstance. Far from a mere hypothetical, this argument has direct applicability to North Carolina, which had a matching-funds system in place prior to Free Enterprise, the constitutionality of which had been, prior to Free Enterprise, upheld by the Fourth Circuit.



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