The Brennan Center for Justice, which has long been a friend of minor party and independent candidates, has become a foe, on the issue of equal public funding for candidates. Furthermore, the Brennan Center is mis-stating U.S. Supreme Court precedent on this issue.
S. 936, introduced in the U.S. Senate by Senators Dick Durbin (Dem-Ill.) and Arlen Specter (Rep.-Pa.) on March 22, provides for public funding for congressional candidates. It would provide equal public funding for any Democrat or any Republican who received a certain number of $5 contributions (the number of such contributions varies by state). Any other candidate would need a number of contributions that was one-and-one-half times as many contributors as needed for a Democrat or a Republican.
The Brennan Center supports this aspect of S.936. Suzanne Novak, deputy director of the Democracy Program for Brennan, said in its defense that “Buckley v Valeo held that the Constitution does not require Congress to treat all declared candidates the same for public-finance purposes.”
This is not true. Buckley v Valeo said that Congress need not treat all political parties alike for presidential public funding, not that it need not treat all candidates alike. In Buckley v Valeo, Congress upheld discriminatory public funding for the presidential campaigns of political parties in the general election, on the basis that minor parties hadn’t been competitive in presidential elections since 1912, and on the basis that minor parties raise far fewer private donations than major parties. But the entire section of the decision speaks of equality between political parties. The word “Candidate” only appears once in this part of the decision (Parts III.B.1 and Part III.B.2).
Notably, the 1974 public funding act addressed in Buckley v Valeo does not discriminate for or against any presidential candidate. The primary season matching funds program, which goes directly to individual presidential candidates, is strictly non-discriminatory. Any presidential candidate seeking the nomination of any political party (no matter how small that party is) is treated equally. All candidates seeking the nomination of a party who raise a certain amount of private money, are then eligible for public funding. This is why Sonia Johnson of the Citizens Party, John Hagelin of the Natural Law Party, Lenora Fulani of the New Alliance Party, and Ralph Nader, all received primary season matching funds. Nader received them not only in 2000, but in 2004 (he was seeking the Green Party nomination in 2000 and the Reform Party nomination in 2004).
Another reason Buckley v Valeo isn’t determinative of the constitutionality of S.936 is that Buckley v Valeo only concerned presidential elections, where, as the court noted, no party other than the Democratic and Republican Parties had been competitive since 1912. In congressional elections, the record is very different. Starting in 1900 and continuing through the present, on the average, two candidates who were not the nominee of either the Democratic Party nor the Republican Party have been elected to Congress every election.
While Mr. Winger and I may have differing legal intrepretations of Buckley v. Valeo, and of the sections relevant to the treatment of minor party candidates in public financing programs (Part III in its entirety, 424 U.S. 85-109), I take issue with his assertions that such interpretations of case law make the Brennan Center, “long . . . a friend of minor party and independent candidates” now “a foe, on the issue of equal public funding for candidates.”
As Mr. Winger knows, the Brennan Center for Justice continues to support third party participation in the political process in a variety of ways. For example, last year I testified before the Connecticut Legislature concerning ways to improve their public financing law, including explicitly its treatment of minor party candidates. Moreover, the Center continues to be one of the few political reform organizations working in the area of fusion voting, a mechanism that greatly benefits third parties. In general, we contiue to work for the rights of all voters, including ways in which they may express themselves through support of third parties. The fact that we may disagree with Mr. Winger on the interpretation of some existing case law does not in any way diminish the sincerity of our advocay with respect to these issues.
The Brennan Center acknowledges that Mr. Winger is widely regarded as an expert and devoted advocate on behalf of third parties and commends him for all of his work. We continue to regard him as a friend and hope that he will review all of our work that seeks to improve democracy and regard us in the same way.