Florida's Republican establishment, flush with Tea Party anti-government enthusiasm, is championing a ballot initiative in November that would abolish the state's public campaign finance system. So it was ironic, if not amusing, to watch the Florida GOP establishment's candidate for Governor, Attorney General Bill McCollum, beseech a federal judge this week to protect his own public finance privilege so he can stay competitive with his upstart primary election opponent, health care mega-millionaire Rick Scott. "We don't all have his silver spoon," McCollum complained to one Florida newspaper's editorial board.
U.S. District Judge Robert Hinkle did come to McCollum's rescue, ruling against Scott's claim that a campaign spending provision in Florida law violated his First Amendment rights. At issue was a code stipulating that when a candidate's privately funded expenditures reach $25 million, his publicly financed opponent (whose campaign is subject to contribution and spending limits) is eligible for state matching funds for every dollar the privately financed candidate spends after hitting that limit. Scott, who has already spent $21 million in advance of the August 24 primary, argued that the matching funds trigger is unconstitutional because it compels him to rein in his campaign outlays and therefore curtails his political speech.
But Scott, who will appeal Hinkle's decision, could at least take heart in the judge's less than confident tone from the bench. Although Hinkle insisted that keeping a level electoral playing field outweighed the free speech concerns, he admitted that his ruling is vulnerable especially if the case reaches the U.S. Supreme Court, which has shown a penchant of late for dismantling campaign finance laws. Last month, in a case involving Arizona's Republican gubernatorial primary, the high court temporarily blocked a similar trigger for matching funds, and it looks likely to declare the provision unconstitutional. A day before Hinkle's decision, a federal appeals court did rule a Connecticut trigger law to be unconstitutional. Said Hinkle as a result, "I'm not at all sure whether the [Florida] statute will be upheld, given the way the wind is blowing."
That wind may be blowing down campaign finance regulations at a particularly precarious moment. It's undoubtedly an election year for political outsiders, but quite a few of them like the conservative Scott, who is worth $218 million can tap into personal fortunes and vastly outspend their rivals. (They also include a Democratic Senate candidate in Florida, Jeff Greene, who became a billionaire using credit-default swaps to bet against the U.S. housing market; and a billionaire Republican Senate hopeful in Connecticut, Linda McMahon, who built the World Wrestling Entertainment empire with her husband Vince.) Scott resigned in disgrace 13 years ago as CEO of the world's largest hospital corporation, Columbia/HCA, after it admitted to massive Medicare fraud. (Scott was never personally charged.) But a lavish television ad offensive (featuring many attacks on McCollum as a "career politician") has helped Scott gain a double-digit lead in some polls over McCollum.
That's one reason, says Tara Malloy, associate counsel at the non-profit Campaign Legal Center in Washington, D.C., that it's unsettling to watch "the sea change in case law we're witnessing now." Provisions like matching funds triggers, she says, are important to keeping the nation's campaign finance system honest, "because they provide some assurance that poorer or less well-heeled candidates can at least be competitive." Campaign watchdog groups like Malloy's also feel the courts are unreasonably stretching the definition of free-speech infringement. Matching funds triggers, Malloy notes, don't directly regulate the wealthier candidate. "This is a new conceptualization of the First Amendment argument," she says, "and one we don't agree with."
David Bossie, however, does and he's got a better record these days with the high court. Bossie is president of Citizens United, a Washington non-profit that advocates more limited government and which won a landmark Supreme Court case against the Federal Election Commission (FEC) in January to lift a ban on corporate spending in political campaigns (Congress is currently considering new legislation to restore the regs in a way that will withstand judicial scrutiny.). "Rick Scott is 100% right," says Bossie, whose FEC case stemmed from his group's efforts to broadcast a documentary critical of Hillary Clinton during the 2008 presidential race. "Money is speech in this case and in this day and age. Florida here is artificially constraining his spending, so they're cutting into his speech and giving McCollum greater speech. It shouldn't be able to dictate the haves and have-nots in that way." (Bossie, however, says he doesn't favor one candidate over the other in that race.)
The Supreme Court's campaign finance deregulation efforts weren't all that unexpected after current Chief Justice John Roberts, a conservative, was confirmed in 2005. It gained steam in 2007 when the high court overturned, in Davis v. FEC, a portion of the 2002 McCain-Feingold Act which had relaxed campaign contribution limits for poorer candidates facing opponents with bottomless pockets. "With the way the Supreme Court is ruling in these types of cases," says Bossie, "I think we'll see Rick Scott prevail." But fortunately for McCollum, probably not before he gets what could be the last chance in Florida to fight the silver spoon with public funds.